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Allahabad High Court · body

1997 DIGILAW 427 (ALL)

BAIJ NATH PRASAD v. SAHDEI DEVI

1997-04-09

R.K.MAHAJAN

body1997
R. K. MAHAJAN, J. This is a Second Appeal filed against the judgment and decree dated 17-12-1974 passed by Shri S. D. N. Sahi, II Additional District and Ses sions Judge, Deoria by virtue of which he dismissed the appeal and affirmed the decree of the lower Court. The lower Court has passed a decree to the effect of prohibitory injunction against interference in the plaintiffs possession over a piece of land and also possession in the alternative on the basis of a title i. e. by way of purchase of land. . 06 acre from Abdul Shakoor and Subrati on 15-12-1967. The trial Court believed the description given in the sale land and decreed the suit. In order to under stand the controversy brief resume of facts is given below. 2. It appears that there was a litigation and suit was instituted in the year 1957. The suit was numbered as 1808 of 1957 regard ing declaration of the title between the pre vious owners and which was compromised. Under compromise 0. 23 acre of land towards the north of the said plot was given to Abdul Majeed, Abdul Shakoor and Sobrati while 0,57 acre land towards south of the plot was given to Ali Sher and others. 3. It appears later on that Abdul Shakoor and Subrati made an application before the competent authority for bhumid-hari rights in respect of 2/3rd shares of their land which fell into their share i. e. . 23 acre. Abdul Shakoor and Sobrati sold away. 06 acre of land out of. 23 acre of land of their share in favour of the plaintiff which is sub ject matter of dispute. 4. It is alleged by the plaintiff that since this sale he is in possession and defendant-appellant in the year 1968 tried to encroach upon the said piece of land. Consequently suit for prohibitory injunction or in the al ternative for possession was filed. The case of the defendant is that the plaintiff has no title over the piece of land, even the title to Abdul Shakoor and Sobrati was denied. It was further pleaded that the land is not identified on the spot and sub-division which has been described by the plaintiff in the plaint does not exist. They went to the extent that they have purchased a piece of land from the aforesaid plot from Shri Ali Sher. It was further pleaded that the land is not identified on the spot and sub-division which has been described by the plaintiff in the plaint does not exist. They went to the extent that they have purchased a piece of land from the aforesaid plot from Shri Ali Sher. The lower Court gave a finding that the plaintiff is owner of. 06 acre of land of plot No. 1487/1 towards north of the said plot. After perusing the record of Original Suit No. 1808 of 1957 from the Record Room it also came to the conclusion that. 23 acre of land towards the north of the plot belonged to Abdul Shakoor, Sobrati and Abdul Majeed and from this. 06 acre has been sold to the plaintiff. The lower Court was also of the view that the land has been properly described by Khasra Number as well as by boundary and the identity of the land is clear on the spot by boundaries. This finding is based on evidence as well as report of the local Commissioner. Admittedly the plaintiff and defendants are co- sharers. Now the dispute is regarding the location of lands. 5. The contention of Shri R. S. Misra, learned Counsel for the appellant is that the lower courts has failed in its duty to locate the land in dispute i. e. identity of the land which had been given to Abdul Shakoor, Sobrati and Abdul Majeed on the one hand and Ali Sher on the other hand on the com promise decree passed in Suit No. 1808 of 1957. The lower Court also committed error relating to the identity of the land of sale-deed dated 15- 12-1961 executed by Abdul Shakoor and Sobrati in favour of the plain tiffs- respondents. None of the Courts tried to determine the location of. 23acre of plot No. 1487/1 which went to Abdul Shakoor, Sobarati and Abdul Majeed and. 57 acre which was left with Ali Sher and others under the decree. It has been also submitted that the lower Court should have also given a finding whether Ali Sher had been in pos session of. 04 acre of land of plot No. 1487 sold by him to the defendant-appellant. It has been further submitted that the case be remanded for the location of plots of dif-ferent-co-sharers in the ends of justice. It has been also submitted that the lower Court should have also given a finding whether Ali Sher had been in pos session of. 04 acre of land of plot No. 1487 sold by him to the defendant-appellant. It has been further submitted that the case be remanded for the location of plots of dif-ferent-co-sharers in the ends of justice. The case be remanded to lower Court for measuring and demarcating. 23 acres of land of plot No. 1487/1 given to Abdul Shakoor, Sobrati and Abdul Majeed and. 57 acre area given to Ali Sher and others under the decree dated 13-8-1958 and then only jus tice can be done. 6. Learned Counsel for the appellant has also brought to my notice copies of compromise dated 14-8- 1958 and survey map of 24- 10-1968. I have allowed this application after hearing the arguments as they are public documents. I do not find any force in the submission of the learned Coun sel for the appellant on the following reasonings. 7. Even though the appeal relates before the amendment of Civil Procedure Code in 1976 as at that time question of law were not framed. The Appellate Court was reluctant to interfere in the findings of fact which were based on reasonable apprecia tion of evidence and there is no misreading of evidence. 8. I have perused the lower court judg ment as well as judgment of Appellate Court and I find that Shri Kaushal Kishore, Commissioner confirmed the survey map, paper No. 57-C-2, also delineates within those boundaries at the spot. The first Com missioner Shri Vishwanath Misra also visited the spot just after fourteen days i. e. on 18-2-1968 and prepared site plan, paper No. 18-C-2 and he also found boundaries tallying the land in suit. There is no mention in the judgment that appellant or the defen dant in the suit ever raised objection against those locations of the disputed land by two Commissioners. The lower Appellate Court has also held in para No. 8 of the judgment that according to compromise northern plot from the mother plot to the extent. 23 acre was given to three brothers Abdul Majeed, Abdul Shakoor and Sobrati and others in cluding Ali Sher were specially given only southern portion of. 57 acre of land. The lower Appellate Court has also held in para No. 8 of the judgment that according to compromise northern plot from the mother plot to the extent. 23 acre was given to three brothers Abdul Majeed, Abdul Shakoor and Sobrati and others in cluding Ali Sher were specially given only southern portion of. 57 acre of land. In view of this matter Ali Sher could not transfer the land in dispute to the appellant on north western portion plot No. 1487/1 as he had no legal interest in it. 9. The lower Appellate Court was also of the view that from the date of com promise the northern portion i. e. . 23 acre area of plot No. 1487/1 vested vide paper No. 84-C-l in the plaintiffs vendors and their brother Abdul Majeed to the complete exclusion of the appellants vendor Ali Sher and other co- tenants. So an irresistible in ference is that the appellant never remained in possession after compromise. 10. The lower Court has come to right conclusion that Ali Sher could not have put the appellant in possession of the suit land and as such he had no right to interfere after the sale-deed at paper No. 35-a 11. These are the findings of the facts based on all relevant features of evidence and they hardly requires any interference. 12. Regarding the prayer that again demarcation be done is not tenable in the facts and circumstances of the case as it would re-open the litigation which has been concluded after a long time. There is no justification for demarcation. The submis sion of the learned Counsel for the appel lant that how the plots are to be located and the land in suit is a non-existent plot is also of no avail. It some times happens that co-sharers remain in possession by virtue of boundaries of land from a big chunk of land and it does not mean that location is not possible. The parties have demarcated their plots in compromise and if any parties have still doubt regarding their/his share he/they can seek the legal remedy by way of partition and not by way of interference in exclusive possession of the respondent- plaintiff of his plot. Admittedly they are co-sharers and they are entitled to enjoy their possession. 13. The parties have demarcated their plots in compromise and if any parties have still doubt regarding their/his share he/they can seek the legal remedy by way of partition and not by way of interference in exclusive possession of the respondent- plaintiff of his plot. Admittedly they are co-sharers and they are entitled to enjoy their possession. 13. In view of the above discussion, I am of the considered view that the appeal has no force at all and it is dismissed. Appeal dismissed. .