Gainda Ram (Dead) through LRs. v. Atma Ram (Dead) through LRs.
2004-09-15
HEMANT GUPTA
body2004
DigiLaw.ai
JUDGMENT Hemant Gupta, J. - The plaintiff is in second appeal aggrieved against the judgment and decree passed by the First Appellate Court whereby suit for possession filed by the plaintiff was dismissed while accepting the appeal filed by the defendant. 2. The plaintiff has filed the suit for possession of the property marked by letters ABCDEF in the site plan on the ground that he has purchased the same from Mst. Rahiman widow of Ahmed vide registered sale-deed dated 31.7.1939, Ex. P-2 along with agricultural land measuring 2 bighas 13 biswas. It is alleged that the defendant on the strength of his power and influence took forcible possession in February, 1978 when a case under Sections 107, 151 of the Code of Criminal Procedure was lodged against the plaintiff and the plaintiff and other members of family were arrested on 28.2.1978. The plaintiff has also pleaded that the plaintiff and his forefathers have been in actual, physical, continuous, uninterrupted and hostile possession of the land for the last more than 12 years. The plaintiff by efflux of time has become owner. 3. The said claim of the plaintiff was contested by the defendant, inter alia, on the ground that the portion marked by letter BACD is in possession of the defendant since the time of his ancestors. The purchase of land by the plaintiff from Mst. Rahiman widow of Ahmed of the suit land was denied. It was alleged that the property purchased by the plaintiff from Mst. Rahiman is situated far away from the site in dispute. The learned trial Court decreed the suit holding that the predecessor-in-interest of the plaintiff Kewal Ram purchased the property in dispute from Mst. Rahiman vide registered sale-deed dated 31.7.1939. The trial Court found that the plaintiff has been able to prove that he has been dispossessed from the suit land in the year 1978 and since the plaintiff was dispossessed from the suit land, therefore, the suit is within limitation and, thus, granted decree for possession. 4. However, in appeal, the judgment and decree passed by the learned trial Court was set aside inter alia on the ground that vide sale-deed Ex. P-2, the plaintiff has purchased land measuring 2 bighas 13 biswas of agricultural land along with a bara. However, no description of any kind of bara was given in the sale-deed.
4. However, in appeal, the judgment and decree passed by the learned trial Court was set aside inter alia on the ground that vide sale-deed Ex. P-2, the plaintiff has purchased land measuring 2 bighas 13 biswas of agricultural land along with a bara. However, no description of any kind of bara was given in the sale-deed. In the said sale-deed, the area of bara, dimension of bara, number of the bara or any other description of the bara has been given. While considering the Khasra Abadi, Ex. P-3, prepared in the year 1852, the First Appellate Court has found that the plaintiff has not able to explain the location of any of the two baras in the village Naya Gaon owned by Mst. Rahiman as widow of Ahmed who was son of Imam Shah in view of the pedigree table, Ex. P-4. The First Appellate Court has found that Naksha Abadi, Ex. P- 5, and site plan, Ex. P-1 are not in any manner connected with each other. The property described in site plan, Ex. P-1, could not be located in Naksha Abadi, Ex. P-5. 5. Referring to the oral testimony of the witnesses produced by the plaintiff such as Hari Krishan, PW-5, attesting witness of sale-deed, Ex. P-2, the Court held that from his statement, it could not found out that which bara was sold by Mst. Rahiman in favour of Kewal Ram and as he did not know the property which was in dispute. While considering the statement of PW-6, Ishan Singh, grandson of the plaintiff, it was held that the said witness is also silent with regard to the purchase of the property of Gainda Ram. He could not explain how much land was purchased from Rahiman. Gainda Ram, PW-7 could not disclose the area of the land and width of bara though he deposed that he has constructed house on a corner of the suit land and the remaining land was lying vacant. He also deposed that Rahiman has constructed house in her land, therefore, the First Appellate Court found that neither by documentary evidence nor by oral evidence, the plaintiff has been able to prove title. 6.
He also deposed that Rahiman has constructed house in her land, therefore, the First Appellate Court found that neither by documentary evidence nor by oral evidence, the plaintiff has been able to prove title. 6. Before this Court, the learned counsel for the appellant has vehemently argued that the First Appellate Court has not considered the statement of DW-5 Mohinder Paul son of the defendant who has appeared as attorney of the defendant. It is pointed out that he has admitted that the site owned by Rahiman is adjacent to the disputed site. On the basis of such statement, it is sought to be argued that the site of Rahiman was adjacent to the site of the defendant which was purchased by the predecessor-in-interest of the plaintiffs from Rahiman in the year 1939. Reliance has been placed upon the judgment reported as Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others, AIR 1960 Supreme Court 100. 7. However, I am unable to agree with the argument raised by the learned counsel for the appellant. The First Appellate Court has gone through the site plan produced by the plaintiff, Ex. P-1, the sale-deed Ex. P-2, pedigree table Ex. P-4, Khasra Abadi Ex. P-3 and Naksha Abadi, Ex. P-5 to return finding of fact that the petitioner has not been able to co-relate bara purchased by the predecessor-in-interest with bara Nos. 4 and 5 allegedly owned by Rahiman. There is no mention of any description of bara either by boundaries or by dimension. There is no mention of bara number in the sale-deed. As per Naksha Abadi Ex. P-5, prepared in the year 1852, the baras have been given number. Therefore, while executing sale-deed in the year 1939, the defendant could very well describe bara either by number or by boundary or by giving dimension. In the absence of any such description, it is not possible to co- relate bara in dispute as the bara purchased by the plaintiff. The alleged admission relied upon by the appellant is not clear and categorical so as to return a finding against the defendant. DW-5 while appearing as a witness has stated we have also seen the site owned by Rahiman adjacent to site in dispute. By such deposition, it is the argument of the plaintiff that Rahiman was the owner of the land which has been sold to the plaintiff.
DW-5 while appearing as a witness has stated we have also seen the site owned by Rahiman adjacent to site in dispute. By such deposition, it is the argument of the plaintiff that Rahiman was the owner of the land which has been sold to the plaintiff. However, no such inference can be possibly drawn from such defendant. As per such statement, adjacent site is owned by Rahiman. There is no reference of sale affected by Rahiman. As per the document produced by the plaintiff, Rahiman has two baras i.e. bara Nos. 4 and 5. Therefore, correlation of the bara purchased by the plaintiff to the disputed site is not possible. 8. There is no dispute with the proposition laid down by the Honble Supreme Court in Narayan Bhagwantraos case (supra). However, in the absence of any unambiguous categorical admission, it is not possible to hold that the defendant has admitted the claim of the plaintiff while appearing as witness. 9. The learned counsel for the appellant has also argued that the plaintiff has perfected his title by way of adverse possession prior to 1978. Therefore, he is entitled to seek possession of the property having perfected his title. The First Appellate Court has discussed the entire evidence to return the finding that the plaintiff has not been able to prove the title. The First Appellate Court has returned a finding that the plaintiff has not been able to show that Gainda Ram, predecessor-in-interest of the property was in possession of the property since time of forefathers or has become owner by adverse possession. The evidence of PW-7 Gainda Ram to the effect that the suit property was used as passage by him and to tether his cattle, was not accepted by the First Appellate Court as it was beyond pleadings. It has been found from the statement of the plaintiff Gainda Ram and his grandson Ishan Singh that the suit property was lying vacant although it was alleged that he has constructed boundary wall. It was held that in respect of vacant land the plaintiff or his forefathers cannot be said to be in possession or adverse possession. The findings recorded by the Courts below are based on proper appreciation of the entire oral and documentary evidence.
It was held that in respect of vacant land the plaintiff or his forefathers cannot be said to be in possession or adverse possession. The findings recorded by the Courts below are based on proper appreciation of the entire oral and documentary evidence. It could not be pointed out that any evidence has been misread so as to vitiate the finding of fact recorded by the First Appellate Court. I do not find any substantial question of law arises. Dismissed. Appeal dismissed.