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1979 DIGILAW 90 (ALL)

Rajoo v. Laudhar

1979-01-18

B.N.SAPRU

body1979
JUDGMENT B.N. Sapru, J. - This is a plaintiffs appeal arising out of a suit filed by the plaintiffs seeking a declaration that they were the owner in possession of the land indicated in the plaint. The plaintiffs alleged that they had been in possession over the land in suit for more than twenty five years that they had two cattle sheds on it and that they had been using the land in various ways. Their case further was that there were proceedings under Section 145, Cr.P.C. which were decided against the plaintiffs and in favour of the defendant. 2. The suit was contested by defendant Laudhar alone. He contended that the plaintiffs had no concern with the land in dispute and that the suit land was appurtenant to his house. It was further his case that the cattle sheds belonged to him and that he had become bhumidhar of the same. It was further his case that the plaintiffs were not in possession. 3. The trial court held that the plaintiffs were not the owners of the disputed land that it belonged to defendant No. 1 and the same was appurtenant to his house. It was urged before the trial court that in suit No. 978 of 1954 of the Court of the Munsif East, Allahabad a joint statement was made to which the plaintiffs and defendant No. 1 were parties, in which defendant No. 1 admitted that the plaintiff's had a madaha over plot No. 408, a part of which land is also involved in the present suit. 4. It was submitted that in view of the admission of defendant No. 1 the suit should be decreed, as an admission is the best evidence against the maker of it. 5. The trial court held that the madaha, which existed when the aforesaid suit was filed, was no longer in existence. It further found that the plaintiff had admitted that the present suit was confined to that portion of plot No. 408 in which an order adverse to the plaintiffs had been passed in proceedings under Section 145. Cr.P.C. It was further found that the admission related to a portion of plot No. 408 which was not involved in the present suit. With these findings the trial court dismissed the suit. The lower appellate court affirmed the findings of the trial court. 6. Cr.P.C. It was further found that the admission related to a portion of plot No. 408 which was not involved in the present suit. With these findings the trial court dismissed the suit. The lower appellate court affirmed the findings of the trial court. 6. The learned counsel for the appellants submits, in the first place, that the admission made by defendant Laudhar was wrongly not relied upon by the lower appellate court on the ground that he was not cross-examined in regard to it. He urges that there was no necessity for the plaintiffs to cross-examine Laudhar in respect of the admission. Learned Counsel may well be right in this submission ; but he has been unable to show that the land in the present suit was the one in relation to which the so called admission was made by Laudhar. The finding of fact is that the admission related to a different portion of plot No. 408. In this view of the matter whatever error of law may have been committed by the lower appellate court, its decision cannot be set aside on this ground. 7. Another difficulty in the way of the appellants is that he has filed a suit against eight defendants, and the admission was made by defendant No. 1 Laudhar alone. The admission of Laudhar would not be admissible as against the other defendants. 8. Another argument of the learned counsel for the appellant is that the lower appellate court wrongly held Laudhar to be a bhumidhar of the land in suit on the basis of a decision of the Judicial Officer, Meja in a suit under Section 229-B of U.P. Act No. I of 1951 ; in which the plaintiffs were not parties. The lower appellate court has held that the decision was not binding on the plaintiffs but it had effect of showing that the rights of Laudhar, defendant No. 1 had, been recognised by the Revenue Court. 9. In view of the findings of fact arrived at by the courts below the judgment of the lower appellate court cannot be set aside in second appeal. In the result, the appeal fails and is dismissed ; but in the circumstances of the case there will be no order as to costs.