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1982 DIGILAW 177 (ALL)

Ram Nath Singh v. Ratan Singh

1982-02-05

A.S.SRIVASTAVA

body1982
JUDGMENT A.S. Srivastava, J. - This appeal is directed against the judgment and decree dated 17-10-1974 of the III Additional District Judge, Varanasi. By means of this judgment, he has dismissed Civil Appeal No. 31 of 1973 and confirmed the judgment and decree dated 23-12-1972 of the then III Additional Munsif, Varanasi in Suit No. 513 of 1960. 2. The appellants are the defendants of the said suit which the respondents' father Dwarika Pradiad Singh thereinafter referred to as the plaintiff) had filed with respect to a land denoted by letters EFGH in the plaint (bearing settlement Plot No. 41 situate in village Khajuri Pergana Shivpur District Varanasi. According to the said plaintiff, he was the owner in possession of the disputed land which was purchased in the year 1915 by means of a sale-deed dated 23-1-1915 executed by one Ram Pratap Singh. Before the sale, it belonged to Brij Kumar and Ram Charan, members of the Joint Hindu Family. Brij Kumar died issueless. Ram Charan had only one daughter who was married to the said vendor Ram Pratap Singh, who sold this land to the plaintiff in 1915 after the death of Ram Charan. After constructing pucca walls on the eastern and western sides of this land, the plaintiff was erecting a wall on its southern side when the defendants-appellants caused interference necessitating the filing of this suit. 3. It is alleged in the plaint that the disputed plot has been wrongly mentioned in the aforesaid sale-deed dated 23-1-1915 as plot No. 38. Before the purchase, it belonged to Brij Kumar Singh and on the date of Suit, it was in possession of the plaintiff. This much is admitted by the appellants themselves. Brij Kumar Singh was the owner of this plot on which his house stood. The rest of the plaintiff's case is not admitted by the appellants according to whom the plaintiff had not purchased this plot by means of the sale-deed of 1915 which related to another plot No. 38 of Brij Kumar Singh and on which the plaintiff has already erected his house. On the death of Brij Kumar Singh, his house on the disputed plot No. 41 fell down due to dis-repairs, where after Ghissu (father of the appellants) started using that land as his sanan land. To the north of this land, there were plots Nos. On the death of Brij Kumar Singh, his house on the disputed plot No. 41 fell down due to dis-repairs, where after Ghissu (father of the appellants) started using that land as his sanan land. To the north of this land, there were plots Nos. 39 and 40 also, which belonged to Shrimati Bachchi and Chamru respectively. Ghissu used to render service to them. After their death, he became owner of their houses also in lieu of his service. In this manner, Ghissu had become owner of all the said three plots Nos. 3.9, 40 and 41 lying to the north of his house. By means of this suit, the plaintiff is only attempting to grab all these three plots. 4. After examining the evidence led by both the parties in the case, the trial court has recorded a finding that the plaintiff Dwarika Prasad Singh was the owner in possession of the disputed plot No. 41 and the sale-deed dated 23-1-1915 relates to this plot. It has rejected the case of the appellants. It is these findings, which have been affirmed in appeal by the IIIrd Additional District Judge, Varanasi, and which are now being challenged in this appeal on the ground that these findings are based upon inadmissible evidence and on a report and a map of the Amin which should have been ignored. 5. Having heard the parties for both the sides and after examining the evidence, I do not agree with the above contention of the learned counsel for the appellants. The evidence on the record leaves no room for doubt that the disputed plot belonged to the vendor by the sale deed dated 23-1-1915. The plaintiff has alleged to have acquired it by the sale-deed. The respondents allege to have acquired it after the death of the said vendor and he had died issueless and his house standing thereon had fallen down. The oral evidence of the plaintiff consists of statements of three witnesses and that of the appellants consists of two witnesses. The plaintiff has produced the sale deed dated 23-1-1915 besides some documents. The appellants have produced no documents. On a comparative estimate of this evidence, both the courts below have held the ease of the plaintiff as proved. The oral evidence of the plaintiff consists of statements of three witnesses and that of the appellants consists of two witnesses. The plaintiff has produced the sale deed dated 23-1-1915 besides some documents. The appellants have produced no documents. On a comparative estimate of this evidence, both the courts below have held the ease of the plaintiff as proved. Besides oral evidence, the boundaries of the disputed plot and its area tally with the boundaries and area of the land sold by the sale deed dated 23-1-1915. Both the courts are of the opinion that the description of the land sold has got to be gathered from the area and boundaries and when the disputed land can be connected with the sale-deed, the mistaken description of the plot number is of no consequence. The plaintiff also obtained sanction of the municipal board before constructing the walls on this land (Ex. 3) and while he was erecting the wall, obstructions made by the appellants led to a proceeding under Sections 107/117 of the Code of Criminal Procedure before the City Magistrate, Varanasi, when the defendant Ram Nath (now dead) had given an undertaking also that he would not indulge in any act of obstruction. If on an appraisal of this evidence of the parties, the courts below have recorded the above findings they have committed no error of law. I do not agree with the learned counsel for the appellants that the sale-deed dated 23-1-1915 relied upon by the plaintiff is in admissible or that its contents cannot be read. It is a document more than twenty years old and it happens to be the original sale-deed. It is now well settled that there is a presumption about its execution and attestation. It is, however, urged by the counsel for the appellants that recital of the sale-deed about the sale of the house cannot be presumed on the basis of the above presumption about its execution. He referred to a decision in Ghurahu and others v. Ratan and others, ( AIR 1981 All 3 ) in support of his argument. This case, however, does not support the above contention. The dispute in that case was with respect to the number of sons which one Sughar Yadav had. One party claimed that he had one son whereas the other party claimed that he had two sons. This case, however, does not support the above contention. The dispute in that case was with respect to the number of sons which one Sughar Yadav had. One party claimed that he had one son whereas the other party claimed that he had two sons. The Deputy Director of Consolidation before whom the said question was raised had based his finding on the basis of some recitals contained in two mortgage-deeds dated 27-12-1910 and 7-8-1917 i.e. more than 20 year old. It has been held in that case the presumption about the execution of the two mortgage-deeds does not justify a finding that whatever is stated in that document is also correct. Such recitals have to be established not by the documents but by proving the contents as well. But it has nowhere laid down that the transaction purporting to have been made by that document has also to be proved by evidence other than the document itself. This decision only makes it clear that such documents while proving the transaction embodied therein does not furnish proof of other recitals contained therein. 6. The other point raised in this appeal is about the Amin's report which need not be referred because the Amin's report only shows the topography of the disputed land and, even if it is ignored, the conclusion which can be derived from the evidence led by the parties in the case cannot be brushed aside. Thus I find that the findings of the courts below do not suffer from any error of law so as to warrant interference. 7. In the result, this appeal fails and is dismissed with costs.