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2000 DIGILAW 390 (RAJ)

Surendra Singh v. Kanchan Devi

2000-03-29

RAJESH BALIA

body2000
JUDGMENT 1. - This is the second appeal against the judgment and decree dated 27-5-97 passed by the learned District & Sessions Judge, Rajsamand affirming the judgment and decree dated 3-4-93 passed by Munsif and Judicial Magistrate, Devgarh in Original Suit No. 2/88 restraining the defendant from affirming the possession of the suit property which is said to be open piece of land owned and possessed by the plaintiff. 2. The plaintiff had filed the suit against defendant Ugrasingh and Shreelal for restraining them from interfering with the possession of the plaintiff on the suit land which was described as 'ai0' for keeping cattle thereon. It was alleged in the plaint that this was the property which was given to the plaint that this was the property which was given to the plaintiff by his father through Will dated 10-6-54 and she was put in possession as on the date of the execution of the Will itself even before Will came into force after death of plaintiff's father. On the eastern side of the land in question is situate the house of the defendants. Though in the original plaint the measurement of land was stated 10' 6" x 10' 6" but by amendment uneven sizes on all sides of the plot were given. According to the plaintiff, she was in possession of the suit land since 1954 and the defendants are trying to interfere with her possession and they started collecting construction material on this land for the purpose of raising construction thereon. In this background, the suit for permanent injunction restraining the defendants or his assignees or agents from making any construction on the suit land or encroaching upon the land in question was filed. The defendants in the written statement of general denial asserted the right of way over this land. In Para No. 3 of the written statement it was stated that this land is for ingress and egress of the defendants. No plea of proprietorship of the land by the defendants themselves was taken in the written statement. The fact of lying material of both the parties were admitted, albeit it was stated that material of plaintiff is lying with permission of the defendants. The plaintiff in favour of the plaint produced as may as 4 witnesses including herself as PW 1, her sister Anop Kanwar PW 2, Misrilal PW 3 and Hastimal PW 4. The fact of lying material of both the parties were admitted, albeit it was stated that material of plaintiff is lying with permission of the defendants. The plaintiff in favour of the plaint produced as may as 4 witnesses including herself as PW 1, her sister Anop Kanwar PW 2, Misrilal PW 3 and Hastimal PW 4. In addition thereto,'the plaintiff produced Will Ex. 1 in favour of the plaint, application Ex. 2, Notice Ex. 3, Will executed by the father of plaintiff in favour of her sister Anop Kanwar Ex. 4, the site map Ex. 5 and letter Ex. 6. In defence, defendants produced as many as 6 witnesses including Ugra Singh himself as DW 1. However, no documentary evidence was produced by the defendants. During the pendency of the suit, defendant No. 1 Ugra Singh died and his legal representatives were brought on record. The trial Court as well as the appellate Court found possession of the plaintiff on the suit property as proved. There has been no dispute between the parties that the property including the property now with defendants was once forming part of the estate belonging to deceased Amabalal, father of the plaintiff. In the written statement, as observed above, the defendants have not claimed any title to the property in themselves, the present suit is not for declaration of the title of the plaintiff and the suit property but is for injuncting the defendants from interfering with the possession of the plaintiff which she is enjoying as an heir of Ambalalji. For the purpose of present controversy, it is immaterial that whether the plaintiff is claiming possession on the land by way of testamentary or intestate succession. Therefore, in my opinion, in the context of the controversy raised in the present suit, the question No. 1 framed at the time of admission for the purpose of determination in the present appeal does not appear to be a substantial question of law, which need to be decided in this case. If the plaintiff is in possession of the property and defendant does not claim to be the owner of the property, plaintiff cannot be non-suited in a suit for injunction if she otherwise is entitled to such claim. If the plaintiff is in possession of the property and defendant does not claim to be the owner of the property, plaintiff cannot be non-suited in a suit for injunction if she otherwise is entitled to such claim. The fact that the plaintiff has been able to prove a right of inferior quality than the claim in the plaint by itself would not be sufficient to non-suit him for relief of injunction against a person having no title or no right to interfere in the peaceful enjoyment of the possession enjoyed by the plaintiff. The finding of possession being a finding of fact by both the Court and has not been shown to be vitiated for want of irrelevant considerations weighing with the Courts below or as a result of partly relevant and partly irrelevant considerations or by ignoring the relevant material on record. The finding binds this Court and cannot be interfered with on re-appreciation of the evidence. 3. It is true that application under Order 41, Rule 27 by the present appellants before the appellant Court has not drawn attention at the time of decision under appeal by the lower appellate Court. However, in totality of the circumstances. I do not consider it fit for remanding the case back for this reason alone and prolong the litigation on that ground. The application under Order 41, Rule 27, CPS is filed to take on record alleged agreement of sale alleged to have been executed by Ambalal during his lifetime in favour of the defendants for transferring the land in question in their favour. The very look at the document suggests that the document is not purported to be placed on record merely for the purpose of leading evidence in defence but with ulterior motive of laying claim to the property as owner. The discretion for allowing additional evidence at appellate stage cannot be exercised for the purpose of inducting altogether new pleas which have not been taken by the parties in their pleadings so far, merely on the basis of what plea has been taken in the oral statement at the time of evidence. The discretion for allowing additional evidence at appellate stage cannot be exercised for the purpose of inducting altogether new pleas which have not been taken by the parties in their pleadings so far, merely on the basis of what plea has been taken in the oral statement at the time of evidence. In this case, pursuant to issues, PW 2 Anop Kanwar had come in witness box and stated that the property in possession of defendants which is situated on the eastern side of the suit land, has been sold by Anop Kanwar after she has acquired that property from her father, to the defendants. This statement has not been challenged in the cross-examination at all. The document which is sought to be now produced is mere agreement to sale and is not a registered sale-deed which could transfer the property and the evidence on transfer of title in favour of the defendants, assuming it to be so without analysing the document itself vis-a-vis the undisputed possession on the existing evidence that the property in question belonging to defendant has been purchased by Anop Kanwar, daughter of Ambalal. This document can have no relevance on the question of title and consequent possession of the property in pursuance thereof. If there would have been any relevance of this document with the subsequent executed sale deed in favour of the plaintiff, the document of title executed after death of Ambalal in favour of the defendants itself would have found the light of day. 4. The application under Order 41, Rule 27, CPC, is therefore, not only belated but also does not appear to be bona fide and does not deserve any consideration. 5. Thus, the possession of plaintiff having been proved and admittedly when some material of the defendant is lying on the suit property over which he himself does not claim in his written statement the proprietorship, the plaintiff is entitled to a decree for injunction. However, from the pleadings of the parties and the evidence of the plaintiff herself, there appears to be a case for modifying the injunction passed in favour of the plaintiff. Defendants have clearly pleaded their right of way over the land. PW 3 Misrilal, who is plaintiff's witness, unequivocally admits that defendants' only way to their house is through the land in question and there is no other way. Defendants have clearly pleaded their right of way over the land. PW 3 Misrilal, who is plaintiff's witness, unequivocally admits that defendants' only way to their house is through the land in question and there is no other way. This statement is further corroborated by site map produced by the plaintiff as Ex. 5 showing this open piece of land is surrounded by three sides by houses of different persons and is open only on the western side and for reaching to the house situated on the eastern side of the house it provides the only access. If that is so, defendants have atleast been able to prove this much case about their right to way to their house. 6. In the circumstances, this appeal is partly allowed, decree of the trial Court is maintained with modification that the injunction passed by the trial Court against the defendants shall be subject to their right of way of reaching to their house through this land. 7. In the facts and circumstances, there shall be no orders of the cost of this appeal.Order accordingly. *******