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1994 DIGILAW 928 (ALL)

BABU v. MOHD YAMIN

1994-12-13

R.B.MEHROTRA

body1994
R. B. MEHROTRA, J. The present Appeal has been filed by the defendant/appellant. Mohammed Yameen, plaintiff filed Criminal Suit No. 430/71 against Babu defendant in the Court of Munsif Kairna. In the aforesaid suit it has been claimed that the defendant be evicted from the shop in dispute which is mailed by letter H. L. S. and N. in the plaint map and the plaintiff be put in possession of the said shop. 2. The defendant contested the said suit and filed written statement. 3. On the pleadings of the parties, the trial Court framed 6 issues. Out of the aforesaid issues, only issues No. 1,2, 3 and 4 are relevant for the disposal of this appeal: (1) Whether waqf Masjid Timir Shah is the owner of the property in dispute? (2) Whether the lease deed executed in favour of the plaintiff is valid? (3) Whether the plaintiff is owner of the property in dispute? (4) Whether the plaintiff has been dispossessed by the defendant on 7-10-1971? 4. After considering all the questions simultaneously, the trial Court came to the conclusion that on the basis of the evidence, the land in dispute has not been proved to be the property of Masjid. Timir Shah and further came to the conclusion that no valid lease deed of the disputed land has been executed in favour of the plaintiff and that lease deed has been held to be illegal for want of registration. On the basis of above discussion, the trial court held that the plaintiff has not been successful in proving that he is owner of the land in dispute and it has further held that the defendant has been in possession of the land in dispute at least from 1-4-1968. Being aggrieved by the aforesaid decision, the plaintiff filed Civil Appeal No. 74/1977 in the Court of District Judge, Muzaffarnagar. The said appeal was allowed by the First Additional District Judge, Muzaffarnagar by his judg ment dated 10-5-1977 and plaintiffs suit for ejectment of the defendant was decreed. Being aggrieved by the aforesaid Judgment, the defendant/ appellant preferred this Second Appeal in this Court. 5. In support of the appeal I heard the learned Counsel Sri G. N. Verma and in opposition Sri Rajeev Joshi. 6. Being aggrieved by the aforesaid Judgment, the defendant/ appellant preferred this Second Appeal in this Court. 5. In support of the appeal I heard the learned Counsel Sri G. N. Verma and in opposition Sri Rajeev Joshi. 6. The appellate Court below has confirmed the finding of the trial Court that the lease deed executed in favour of the plaintiff was not valid and has further confirmed the finding also that the plaintiff has not been proved to be owner of the property in dispute. Thereafter, agreeing on the aforesaid issues the lower appellate Court, after appraising the entire evidence, arrived at the conclusion that the lease deed executed in favour of the plaintiff is not admissible in evidence for want of registration, and that the plaintiff has not acquired any right of the land in dispute on the basis of said lease deed, still, it is clearly found from appreciation of the evidence that the plaintiff has been continuing in possession of the land in dispute in the basis of the said lease deed since 1963 and the defendant has entered into unlawful possession of the land in dispute. On the basis of the said finding of fact, the lower appellate Court accepted possessory title of the plaintiff over the disputed land and held that the plaintiff has right to remain in possession over the land in dispute and after analysis of the entire evidence, further came to the conclusion that the defendant is in possession of the disputed land as a tresspasser and on the basis thereof it decreed the suit of the plaintiff against the defendant and ordered ejectment of the defendant from the land in suit, 7. The learned Counsel for the appellant has challenged the impugned order before me mainly on the following grounds:- (1) Merely a lessee or licensee has no right to dispossess a trespasser from the land in dispute. Such a right vests only in the owner of the property in dispute. (2) Unless a person proves his possession, beyond the limit prescribed under the Limitation Act, he cannot claim any right over the land in dispute on the basis of possession. (3) On the basis of the findings of fact arrived at by the lower appellate Court, tae plaintiff has failed to prove his lawful posses sion on the disputed land. (2) Unless a person proves his possession, beyond the limit prescribed under the Limitation Act, he cannot claim any right over the land in dispute on the basis of possession. (3) On the basis of the findings of fact arrived at by the lower appellate Court, tae plaintiff has failed to prove his lawful posses sion on the disputed land. (4) The lower appellate court has without any evidence, accepted the lawful possession of the plaintiff over the land in dispute. 8. In support of all the aforesaid arguments, the learned Counsel for the appellant has cited before me the cases of:- (1) Kamta and others v. Sajiwan and others, 1982 AWC 112: (2) Parasnath v. Sukhdeo, 1980 AWC 161: (3) Parmeshwaram v. Parmeshwaran, AIR 1963 Ker 297 and (4) Nagar Service Society v. K. C. Alexandar, AIR 1965 SC 1165. 9. I have gone through the aforesaid judgment. Before considering the aforesaid judgments, it is necessary to consider the evidence which the lower appellate court has taken into consideration in connection with the plaintiffs lawful possession and the basis on which it has held the plaintiffs possession as lawful over the land in dispute, The present dispute is in connection with a shop shown in the plaint map in front of which there is a Sehan marked D. M. N. L. in the plaint map. According to the plaintiff, the defendant has forcibly constructed a thatch, a wall and a latrine in the aforesaid Sehan during the pendency of the suit. The plaintiff has tiled suit for ejectment of the defendant from the disputed Sehan. Waqf of Masjid Timir Shah executed a lease deed of the property in dispute in iavour of the plaintiff, but the trial Court as well as the lower appellate Court have arrived at a finding of fact that it is not proved by any evidence that Waqf Masjid Timir Shah was hair the owner of the property in dispute, the Courts below have further found that the persons who are alleged to have executed the lease deed in favour of the plaintiff, were not authorised to execute the lease deed. 10. On the third point the Courts below decided that the lease deed is not admissible in evidence for want of registration. 10. On the third point the Courts below decided that the lease deed is not admissible in evidence for want of registration. On the basis of the said findings, it has been held that no right accrues on the basis of the lease deed about land in dispute, but after the aforesaid findings, the lower appellate Court thought to consider that even though disputed lease deed is not admissible in evidence, yet it is relevant in connection with possession and thereafter analysed the evidence as to whether the plaintiff has been successful or not in proving any possessory title over the property in dispute, and in the same context, considered the question as to whether the defendant is in unlawful possession of the land in dispute? After discussing the entire evidence, the lower appellate Court arrived at the finding of fact that the plaintiff has succeeded in proving his possessory title in respect of the land in dispute and from appreciation of the evidence it is clearly found that the defendant has entered into unlawful possession of the land in dispute, and decreed the suit of the plaintiff for dispossessing the defendant on the ground that on the basis of possessory title, the plaintiff has got an unfettered right to evict a tresspasser and the defendant being in unlawful possession of the land in dispute, is liable to ejectment. Accordingly it passed the order for dispossessing the defendant from the land in dispute: (1) Kamtas case (supra), this Court has not laid down any principle only it has remanded the case to the lower appellate court after framing an issue. In the aforesaid decision there is merely mention of the arguments raised by the learned Counsel for the parties, and there is no decision on these arguments. The aforesaid decision is not relevant in this appeal. (2) In Paras Naths case (supra), this Court has decided that for securing the relief of permanent injunction, it is necessary for the plaintiff to prove his title and possession over the property in dispute. The decision is irrelevant on the question of possessory title. The aforesaid decision is not relevant in this appeal. (2) In Paras Naths case (supra), this Court has decided that for securing the relief of permanent injunction, it is necessary for the plaintiff to prove his title and possession over the property in dispute. The decision is irrelevant on the question of possessory title. (3) In Parmeshwarams case (supra), the Kerala High Court considered the question that it a suit is brought by owner of ejectment in respect of a building then that suit can only be decreed when the plaintiff proves his title over the land on which the building in dispute stands. Merely by proving his title in con nection with the building the plaintiff is not entitled to eject the defendant from the building m dispute. The decision is irrelevant in connection with the issue at possessory title; and it is not necessary to discuss it in detail. (4) In Nayyar Service Societys case, provisions of Articles 64 and 65 of Limitation Act have been considered and it has been decided that a person in possession of any land acquires possessory title against the whole world except the true owner of the land and if the true owner of the land is not a party to the suit, then he can under the power conferred under Article 64 of the Limitation Act, bring a suit for ejectment against any third person who forcibly interfere in his possession. The decision applies with full fours on the facts of present appeal and it supports the findings arrived at by the lower appellate court. On proof of possessory title of the plaintiff the lower appellate court decreed the plaintiffs suit against the defendant. Possessory title has been accepted in the aforesaid decision and a principle has also been laid down that the person having possessory title is also empowered to dispossess from the land in dispute any unauthorised person or any third person. The relevant extract of the said decision is reproduced as under:- "the effect of the two cases is that between two claimants, neither of whom has title in himself the plaintiff if dis possessed is entitled to recover possession subject to the course to the law of limitation, If he proves that he wu dispossessed within 12 years be can maintain his action. " Article 64 of the Limitation Act referred to reads as under:- "64. " Article 64 of the Limitation Act referred to reads as under:- "64. For possession of immovable property based on previous possession and not on titles when the plaintiff while in possession of the property has been dispossessed. " 11. From the above discussion, it is clear that on the basis of possessory title the plaintiff was entitled to dispossess the defendant who had dispossessed him from the land in dispute forcibly within twelve years. 12. So far as the learned. Counsel for the appellant has challenged the findings of fact arrived at by the lower appellate court, on the basis that from the evidence the plaintiffs possession has not proved and that it is also not proved that the defendant was in unlawful possession of the land in dispute. In the aforesaid connection I examined the relevant evidence referred to by the lower appellate courts and I am satisfied that the lower appellate Courts has arrived at said finding on "evaluation of the evidence, there is no legal flaw in the said finding and there is no jurisdiction to interfere in findings of facts. 13. Accordingly all the points raised in the appeal are rejected. The appeal is devoid of force and is dismissed with costs. 14. Under the mandatory provision of Section 7 of the Official Language Act, it is ordered that the Registrar of the Court will get this judgment translated into English. By a competent person and after getting it approved by the Court, make the copy of this judgment together with the transla tion available to the parties concerned within a month on their making an application under the rules. The copy of the judgment shall not be issued to the patties without attaching the English translation, nor shall a copy of the judgment be sent to the subordinate court without the translation. Appeal dismissed. .