JUDGMENT M. Wahajuddin, J. - The plaintiff brought a suit for demolition of constructions, injunction restraining the defendants from interfering with the possession and in the alternative for possession of the land in suit. The land was shown as ABCD. In the site plan the two drains of the defendant's house which are alleged to be recently opened were shown with letters X1 and X2 and the southern wall of the defendant's house was shown in site plan AI and B1. I may also at the very outset mention that there are sketch map also on record to give a clear picture. The plaintiff's case is that the suit land is in plot No. 165 and the defendants have no concern with the same while the plaintiff is in possession since the time of her grand-mother-in-law Smt. Chaura and in any case she has perfected her title by adverse possession. It was further maintained that the defendants removed the Gajber of dry leaves of the plaintiff kept on the land in suit to make construction and during pendency of the suit they have also made certain constructions. 2. The defendant No. 1 maintained that the land in suit is part of defendant's Sehan and in the east of defendant's house and Sehan there was Khandahor of one Rajjak and simply on a portion of it plaintiff started keeping Bharosan three years ago. It was further maintained that there was an earlier litigation between the plaintiff and some others and on that occasion the plaintiff scattered some dried leaves at the time of the spot inspection just to create evidence of possession. It was also maintained that drains of the defendant's house flows on the land in suit since long. It was further maintained that the plaintiff was just a licence and had no right of sue. 3. The lower court framed issues. Issues 3 to 5 are not material; last being general and other two concerning valuation, estoppel and acquisance the two material issues were whether the plaintiff was owner in possession of the land shown with letters ABCD in the map given at the foot of the plaint and whether the plaintiff is in possession over the land in suit and if not whether suit is in time.
The lower court held on these issues disposed of together that the plaintiff is the owner of the property in suit and suit has been fled within-time. It also found that the case of defendants is false. Estoppel issue was also decided against the defendants. 4. An appeal was preferred and in the first appeal the appellate court discussing the evidence thread hare came to the conclusion that the suit land has been in possession of the plaintiff and her grand-mother-in law Smt. Chaura since long and they have been keeping their dry leaves ever it and there would be a presumption in view of the long possession that there was a licence of the Zamindar and the land in suit being adjacent to the plaintiff's house had been used for beneficial enjoyment of it and the land is part and parcel of her house. The appellate court also thus upheld the findings of the lower court concerning the drains dust found that as the passage intervenes in between the defendant's house in which Nabdans had been open and plaintiff house, the drain as such cannot be closed but defendants are to be restrained from flowing water of that drain to the suit land. The demolition decree was also upheld. The defendants appellants have challenged and assailed the findings of the two courts below. It is a settled law that a finding of fact of the courts below cannot be interfered with in second appeal in exercise of power under Section 100 C. P. C. Ram Chandra v. Ramalingam ( AIR 1963 SC 302 ), 1959 SG 57 authority on the point. It has been further held in the case of Bhajan v. Salimalla (AIR 1967 Alld 211) that any inference drawn from findings of fact is a question of fact. So on the face of these authorities concurrent findings of the courts below concerning possession of the plaintiff-respondent over the suit land since very long period, inference of title from the same suit being within limitation and the drains (Nabdans) being recent cannot be questioned or interfered with. 5. Learned counsel for the appellant however urged that the courts below have erred on the legal aspect as to whether any user of the present type is at all a user of adverse possession creating title at all.
5. Learned counsel for the appellant however urged that the courts below have erred on the legal aspect as to whether any user of the present type is at all a user of adverse possession creating title at all. In support of the argument advanced reliance was placed upon the case of Sri Ram v. Sheo Das ( 1972 AWR 260 ) a single judge pronouncement. In paragraph 5 of the pronouncement at page 262 the observations in the case of Pramji Cruest v. Goculdas Madhowji (ILR 25 Bombay 338) were cited. It was observed in the case of Sri Ram (supra) that a user of temporary character of miscelleneous nature would not create title by adverse possession. In this very authority it has been further held that long possession would sufficiently entitle the plaintiff to injunction against defendant who does not prove his title. Further observations were made that possessory title is good against every body except the true owner. The defendants in this case did not prove their title or even any long possession worth the name so the plaintiff could well come on the basis of the possessory title and the ruling cited is not helpful to the appellant. I may also observe that it is not a casual miscellaneous possession. If a person carries Bharbhooja work, the keeping of dry leaves is a permanent feature and from the evidence on record it is also proved that this Bharbhooja has been in existence from near about 1953 and there is further evidence believed by the two courts below that it has continued. In fact the land in suit adjoins the house of the plaintiff. If a trespasser intervenes with the possession of one who has been in possession since very long time that in itself will entitle the aggrieved party to sue. I am fortified by the view that I am taking by a later pronouncement in the case of Rikhai v. Kauleshar (1983 AIR 81). The mixed question of law and facts on this point stands completely resolved and all other points relate to a question of fact including the finding that the land ABCD has been in possession of the plaintiff-respondent although and defendants have opened new drains and made new constructions.
The mixed question of law and facts on this point stands completely resolved and all other points relate to a question of fact including the finding that the land ABCD has been in possession of the plaintiff-respondent although and defendants have opened new drains and made new constructions. After going through the judgment of the two courts below I find that all evidence has been fully discussed, appreciated and only then the findings of fact have been recorded against the present appellant and no interference will be made with such finding in the second appeal. 6. The next point urged was that as a passage intervenes between the mouth of drains (Nabdan) and the land in suit in claimed by the plaintiff, injunction should not have been granted concerning the Nabdans. The first appellate court has already considered that aspect, and modified the decree of the trial court by making the position clear. It has not granted any injunction restraining the defendants absolutely regarding flow of water nor it had directed closure of the Nabdans. The injunction is simply to the effect that defendants should not flow the water of the drains in any part of the suit land of the plaintiff. The defendants have not been restrained from flowing the water through the passage or in any other manner they can manage. I, however find that the lower court's decree was concerning suit land as given in the cite plan but paper No. 146 Ga was made a part of the decree that indicates plaintiff's suit land. The appellate court also so far as this aspect is concerned did not make any modification. On a perusal of the map 146 Ga, I find that in that map passage intervening defendant's house and his Nalies and the plaintiff's suit land is not clearly defined nor demarcated. On the contrary in the other map 137 Ga prepared by Amin the suit land intervening passage are all clearly demarcated and the suit land has been marked with letters SBCT in the map. The passage has also been clearly mentioned and given in this map. I also find from the English note maintained by the trial court that plaintiff's counsel gate a statement that plaintiff's claim is only to the land SBCT and not beyond that.
The passage has also been clearly mentioned and given in this map. I also find from the English note maintained by the trial court that plaintiff's counsel gate a statement that plaintiff's claim is only to the land SBCT and not beyond that. In the circumstances while upholding the decree of the first appellate court I direct for the sake of clarity that it is the map 137 Ga which should also form the part of the decree and the suit land in that map is enclosed with letters SBCT and the entire decree as modified by the first appellate court will appertain to that land in modified form granted by the first appellate court. With these observations for the sake of clarity the present appeal is dismissed and considering all the circumstances of the case parties shall bear their own costs of this second appeal.