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1992 DIGILAW 529 (ALL)

Bhairon Dutt v. Kishan Singh

1992-04-16

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - This second appeal has been filed under Section 331(4) of U.P. Act No. 1 of 1951 against the judgment and decree passed by the additional commissioner, Kumaun Division, Nainital, on 20.11.1990 in first appeal no.583/8 of 1982-83 filed against the judgment and decree of the Assistant Collector 1st Class/Addl. S.D.O., Kashipur, district Nainital in a suit under Section 209 of U.P. Act. No. 1 of 1951. 2. In the trial court Kisahn Singh and others filed a suit under Section 209 of U.P. Act No. 1 of 1951 for the ejectment of Bharion Dutt Joshi and Prem Singh Bistha over plot no. 170/2 area 8-0-0. The suit was that the plaintiffs-respondents were minors when their father died. Hence they obtained the assistance of Prem Singh,defendant-appellant for the cultivation of the disputed plot. Afterwards Bhairon Dutt was also kept for assistant in cultivation of the suit plot, but Prem Singh defendant however left the disputed plot but Bhairon Dutt had constructed hut and have occupied the disputed plot, hence this suit that they should be ejected. They also prayed that they have not sold the disputed plot to Prem Singh defendant, if he is found in possession on the basis of the records they are liable to be ejectment and the money which they have obtained are ready to back. The defendants-appellants contested the suit. Bhairon Dutt joshi filed a written statement with the allegation that the father of the plaintiff-respondent Chaturi Singh was in need of money for the marriage of his daughter and he sold the disputed plot for a consideration of Rs. 800/- to Prem Singh in 1967. After it Prem Singh constructed a house in the disputed plot and planted trees and began to live in. The sale deed was not executed and suddenly chaturi Singh died. The mother of the plaintiff and the wife of Chaturi Singh obtained permission from the District Judge to sell the disputed plot on 23.5.1970. Prem Singh is in service. He has sold the disputed plot alongwith another plot of 4-10-0 area for consideration of Rs. 4,000/- on 10.4.1974. He is managing to get the sale deed executed. He alleged that he has paid the consideration money and he is in possession alongwith Prem Singh. After taking the evidence the Additional Sub-Divisional Officer/Assistant Collector, 1st Class, Kashipur, district Nainital decreed the suit on 8.101982. 4,000/- on 10.4.1974. He is managing to get the sale deed executed. He alleged that he has paid the consideration money and he is in possession alongwith Prem Singh. After taking the evidence the Additional Sub-Divisional Officer/Assistant Collector, 1st Class, Kashipur, district Nainital decreed the suit on 8.101982. He also awarded the demages of Rs. 800/- per year from 1387 fasli. In his finding the trial court found bairon Dutt Joshi in unauthorised possession over the dispute plot. Appeal was filed against that decree and judgment. The Additional Commissioner dismissed the appeal and he confirmed the order and decree of the trial court. The learned Additional Commissioner did not give any definite finding of possession. He only observed that there is no solid proof of possession either adverse or by consent of Bhairon Dutt Joshi, therefore, he has not acquired any right and title. On this ground he dismissed the appeal. The present second appeal has been filed against the decree and judgment of the additional Commissioner. 3. I have heard the learned counsel for the parties and have perused the records. 4. The learned counsel for the appellant argued that it was the purely suit under section 209 of U.P. Act. No. 1 of 1951. The suit under Section 209 of U.P. ACt No. 1 of 1951 will not be maintainable unless the appellant is in possession. The first appellate court has not found them in possession, hence they should have dismissed the suit as not maintainable. His contention is also that when the appellants are not in possession no damages could be awarded. However, his argument was that their possession was in lieu of payment of money. Since they have advanced the money and are in possession, therefore, transaction will be deemed as sale and have acquired bhumidhari right. 5. The learned counsel for the opposite parties argued that the appellants are in possession and they are liable to ejectment. The decree and judgment passed by first appellate court is contradictory. If none of the appellants are in possession the suit ought to have been dismissed as not maintainable and the damages decreed by the trial court should have been also set aside. 6. The decree and judgment passed by first appellate court is contradictory. If none of the appellants are in possession the suit ought to have been dismissed as not maintainable and the damages decreed by the trial court should have been also set aside. 6. Therefore, the decree passed by the first appellate court cannot be sustained and this appeal is allowed and the decree and judgment of the first appellate court is set aside and the first appellate court is directed to give finding on the fact of possession and nature of possession then determine whether the appellants are liable to ejectment or they have perfected any right and title. The pleading of the parties should be considered while deciding the appeal on the point of possession also. Therefore with this observation the appeal is remanded to the first appellate court for fresh trial.