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1983 DIGILAW 383 (ALL)

Iqbal v. Ram Singh

1983-05-18

DEOKI NANDAN

body1983
JUDGMENT Deoki Nandan, J. - Both the parties to this litigation, namely the plaintiff-respondent and the defendant-appellants were allotted land by the Gaon-Sabha. The plaintiff's allotment was earlier, having been made by a resolution dated the 23rd July, 1967. The land allotted to the plaintiff was to the south of plot No. 1400 and the area of it was 10 Biswas. The plaintiff claimed that he entered into possession of the land so allotted to him and had grown 4 Kikar trees, 12 plum trees, two Mango trees and one Neem tree thereon. According to the plaintiff, the defendants had been trying to unlawfully interfere with his possession. The suit was originally for injunction, but was later on amended into a suit for possession. A map was given at the foot of the plaint, but a better map was prepared by an Advocate Commissioner which forms part of the decree of the trial court and the relief claimed and granted have been worded with reference to the said map prepared by the Advocate Commissioner. It is, however, not necessary for me to go into the details inasmuch as I am satisfied that this appeal is concluded by the finding that the land in suit was that allotted to the plaintiff and was not that which was later on allotted to the defendants. 2. The defendant's were also allotted some land later on by the Gaon-Sabha and appear to have interfered with the plaintiff's possession on or encroached upon, the land in suit claiming that was the land allotted to them. It further appears that the plaintiff had earlier made an application which was registered as Case no. 16 of 1970 before the Sub-Divisional Officer, Kairana for cancellation of the allotment made in favour of the defendants on the ground that they were unlawfully trying to interfere with the plaintiff's possession. The Sub-Divisional Officer found that the land allotted to the defendants was different from that allotted to the plaintiff and the allotment was not liable to be cancelled. He also observed that the best course for the parties was to get the land allotted to them correctly demarcated on the spot and to take possession accordingly. 3. Mr. G.D. Srivastava, learned counsel for the defendant-appellants, placed strong reliance on this order of the Sub-Divisional Officer, Kairana, which is dated the 30th November, 1970, and a copy of which is Ext. 3. Mr. G.D. Srivastava, learned counsel for the defendant-appellants, placed strong reliance on this order of the Sub-Divisional Officer, Kairana, which is dated the 30th November, 1970, and a copy of which is Ext. 1. He said that the question whether the land in suit was that allowed to the plaintiff or to the defendants could not satisfactorily be determined by oral evidence and the only course open to the plaintiff was to have got the land demarcated by survey measurement. 4. The present suit was filed on the 7th December, 1970 within a week of the said order of the Sub-Divisional Officer, Kairana. If the plaintiff felt that he was already in possession of the land allotted to him and his allotment being earlier than the allotment made to the defendants, the plaintiff could not be prevented from protecting his possession by a suit in the civil Court which he did. If the defendants did not get possession over the land allotted to them or felt that the plaintiff was in possession of more land than was allotted to him and had in that process encroached upon the laud allotted to them, it was for the defendants to have approached the Gaon-Sabha or the proper authority for delivery of possession over the land allotted to them by the Gaon Sabha. Surely they cannot take the law into their hands and interfere with the plaintiff's possession. 5. The finding that the land in suit was that allotted to the plaintiff was not that allotted to the defendants is a finding of fact and is based on appraisal of the evidence on the record. It has not been established before me that it suffers from any error of law. 6. There is no merit in this Second Appeal. It is dismissed with costs.