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1987 DIGILAW 70 (ALL)

Thakurji Established in Temple Thakur Bari v. Jai Narain Rai

1987-01-21

N.N.MITHAL

body1987
JUDGMENT N.N. Mithal, J. - This appeal was earlier heard by me on 6th August, 1985 and an issue was framed which was remitted to the Court below for its finding. The issue remitted was as follows : "Which part of plot no. 2128 measuring 10 Biswansis had been taken out from plot no. 2128 for Abadi purpose during consolidation? If so, how much of the disputed constructions lie in that area?" From the findings that have been returned by the court below on this issue, it appears that after making some initial efforts to have the land located through Survey Commissioner, the plaintiff did not later on participate in the proceedings and the court, on the basis of available material on the record, came to the conclusion that during consolidation plots nos. 2128 and 2129 were divided into two parts, the northern portion was assigned Plot No. 461 and earmarked for Abadi while the southern portion was numbered as 462 and has been held as belonging to the appellant. 2. There is no dispute so far as plot No. 462 is concerned. The dispute centres around the northern portion i.e. Plot No. 461 in which some constructions made by the defendant are standing. According to the plaintiff, the land underneath these constructions and the entire plot no. 461 belonged to it while according to the defendant, the same was allotted to him and alternatively he had acquired title by adverse possession. Both these pleas have been rejected by the courts below and there is nothing to show to the contrary. These findings are, therefore, confirmed. As regards the title of the plaintiff, the lower appellate court, while allowing the appeal of the defendant-respondent observed that the land of plot no. 461 having been earmarked for purpose of Abadi, the same had vested in the Gaon Sabha and the plaintiff has no subsisting title to the same. In view of this finding, the appeal was partly allowed in respect of plot no. 461. The present appeal is directed against this part of the decision of the lower appellate court. 3. Sri Pandey, learned counsel appearing for the appellant, has vehemently urged that the land of plot no. In view of this finding, the appeal was partly allowed in respect of plot no. 461. The present appeal is directed against this part of the decision of the lower appellate court. 3. Sri Pandey, learned counsel appearing for the appellant, has vehemently urged that the land of plot no. 461 did not vest in the Gaon Sabha and in any case since the defendant's stand has been rejected by both the courts below he had no right, title or interest in the said land. However, the appellant can succeed only when he is able to establish his own right and title in respect of the land in dispute. There was evidence on the record Vide Ext. A-3 to show that in plot no 461 an area of 19 Kachwansi was recorded as Nai Parti in the Khatauni of 1377 to 1379 Fasli corresponding to the year 1969 to 1972 i.e. during the pendency of the suit. However, it is also apparent from the record that although the suit was filed in 1964, the' consolidation proceedings were in progress during the year 1968 onwards. It was during these proceedings that new numbers were assigned to old numbers 2128 and 2129. In view of this entry in respect of plot no. 461, the burden was on the plaintiff to prove by contrary evidence that this entry was incorrect and that the land had not been earmarked for the purpose of Abadi but was kept outside the consolidation being an existing Abadi. This fact has not been established on the record. In the circumstances it is very difficult for me to agree with the appellant that plot no. 461 had been kept outside the consolidation and as such the entries made during the consolidation ought to be ignored. In fact consolidation entries will have to be accepted unless the same were proved to be wrong. 4. After the issue had been remitted to the court below, it has now recorded a clear finding that the dividing line between plot no. 461 and 462 is between points 'Da' and 'Ra' as shown in the map 17-C2 dated 5th March 1986. The land lying to the south of this, therefore, forming part of plot no. 462 belonged to the plaintiff while the same cannot be said about the land lying to the north of it forming part of plot no. 461. 5. 461 and 462 is between points 'Da' and 'Ra' as shown in the map 17-C2 dated 5th March 1986. The land lying to the south of this, therefore, forming part of plot no. 462 belonged to the plaintiff while the same cannot be said about the land lying to the north of it forming part of plot no. 461. 5. In view of this, I find no merit in the appeal which is accordingly dismissed. However, in view of the circumstances of the case, the parties are directed to bear their own costs throughout.