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1984 DIGILAW 1006 (ALL)

Ram Saran v. Doodh Nath

1984-11-29

KAMLESHWAR NATH

body1984
JUDGMENT Kamleshwar Nath, J. - This second appeal is directed against the confirmation by the lower appellate court of dismissal of the plaintiffappellant's Regular Civil Suit No. 27 of 1975 by IIIrd Additional District Judge, Pratapgarh. 2. The dispute relates to an area marked abcfghila, in the map dated 2231976 (Paper no. C42 of the trial court) prepared by an AdvocateCommissioner Sri Krishna Pal Singh. The land has two constructed portions R and O. Inside the portion R a tube well is installed. Portion R lies outside Grove no. 258. Portion Q, lies inside Grove no. 258. The portion of the land to the west of these structures, broadly speaking, lies outside towards the west of Plot no. 258, the remaining portion lies within plot no. 258. Plot no. 258 is admittedly the grove of plaintiffappellant, Ram Saran. 3. The Regular Civil Suit no. 27 of 1975, which has led to this second appeal, was instituted on 621975 with the allegation that initially in the month of February 1973 the defendantrespondent, Doodh Nath, demolished the southern Mend of the grove and again on 221975 the defendantrespondent dug out certain foundations in the disputed land and started making constructions and ultimately completed them during the pendency of the suit. 4. The case of the defendantrespondent was that the land in dispute was the defendantrespondent's Paurhi (also called Paudhar), appurtenant to his well and part of his Sahan land, for all times of which he possessed Abadi rights. It was stated that in any case the plaintiffappellant had not been in possession of the disputed land within 12 years before filing of the suit. 5. The suit having been dismissed, the lower appellate court held that although the major portion of the land lay within the grove of plaintiffappellant and all the constructions were new, it was clear from the plaintiff's own evidence that the disputed constructions had been made on the old Paudhar of the well which had been in existence for more than 40 years and, therefore, the plaintiff appellant had not been in possession of the disputed land. It was held that the defendantrespondent had matured his rights by adverse possession to the knowledge of the plaintiffappellant. 6. Notice of hearing of this appeal was served upon the respondent by registered post. No appearance has been put in on his behalf. 7. It was held that the defendantrespondent had matured his rights by adverse possession to the knowledge of the plaintiffappellant. 6. Notice of hearing of this appeal was served upon the respondent by registered post. No appearance has been put in on his behalf. 7. Having heard learned counsel for the appellant, I find that the courts below have misconceived the evidence on record. The Commissioner's report, read in the light of his map, would show that the tubewell machine was installed in the portion marked R and not in the portion marked Q. The well is situated directly towards the west of the portion R. The important feature is that while the portion R lies outside the plaintiffappellant's grove no. 258, portion Q, lies within the grove. The well is situated directly towards the west of the portion R. It is the common evidence of both the parties that the well had a Paudhar towards the east. That would lie through the portion R and not through the portion Q. The statement of D.W. 1, Doodh Nath, the defendant, was that he had not made any constructions on the plaintiff's groveland, but only on his Paudhar land. If the Paudhar land was roundabout the well and the structures in portion R, wherein the tubewell machine was found by the AdvocateCommissioner, at the time of inspection in the presence of both the parties, the Paudhar should have been substantially towards the south and outside the grove. The finding of the courts below that the structures Q, was also on the Paudhar, is contrary to the evidence on record. 8. It is not for this Court to enter upon an appreciation of the evidence and, therefore, I do not propose to consider the other elements of the evidence on record. It is enough that it is found that the appreciation of the evidence by the courts below is erroneous. On this basis, the appeal should succeed and the case should be remanded to the lower appellate court for rehearing and disposal. 9. The appeal is allowed. The judgment and decree of the lower appellate court in Regular Civil Appeal No. 77 of 1977 is set aside and the appeal is remanded to the learned District Judge of Pratapgarh for rehearing either by himself or by any other competent court to whom he may make over the appeal, in accordance with law. 10. The appeal is allowed. The judgment and decree of the lower appellate court in Regular Civil Appeal No. 77 of 1977 is set aside and the appeal is remanded to the learned District Judge of Pratapgarh for rehearing either by himself or by any other competent court to whom he may make over the appeal, in accordance with law. 10. Parties shall bear costs of this appeal. 11. Let the record be sent to the Court of District Judge, Pratapgarh. The Parties shall appear before him on 20121984. (Appeal allowed.)