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2004 DIGILAW 688 (JHR)

Akil Ahmad v. Md. Zakir

2004-07-09

N.N.TIWARI

body2004
ORDER Narendra Nath Tiwari, J. 1. This appeal is against the judgment and decree of affirmation passed by the Additional District. Judge-IX, Dhanbad in Title Appeal- No. 38 of 1988. The defendant is the appellant appellant. The plaintiffs had filed-Title Suit No. 94 of. 1970 in the Court of Munsif, Dhanbad praying relief for declaration of title and delivery of possession over the suit land described in Schedule "C" to the plaint measuring an area 9 Chhataks being portion of plot No. 2109 appertaning to Khata No. 100 of Mouza Parurpala P.S. Chouki, District Dhanbad. 2. The case of the plaintiffs was that the suit land at one point of time belonged to one Abdul Rauf and Moinuddin which was purchased from one Mahoshwari Devi, who had acquired the same from the Railways. Abdul Rauf and Moinuddin sold the said land measuring one Katha and nine Chattak as described in Schedule A of the plaint, to the plaintiff by virtue of registered sale deed dated 1.7.1965. The plaintiffs constructed a compound wall over the Schedule A land also constructed a tin shed on the southern portion of the land and let out the same on rent to the tenant. The further case of the plaintiffs is that adjacent to the south of the land described in Schedule A. the wife of the plaintiff Nafisa Bibi had her own land measuring one Katha and plaintiff after purchasing the Schedule A land amalgamated the same with her own land bringing both the lands within one boundary. The plaintiffs subsequently sold one Khata of land out of Schedule Aland which has been described in Schedule B of the plaint to his nephew, Md. Hussain and minor Md. Ahmad who shortly thereafter went to Pakistan leaving behind Md. Hussains wife. It is stated that the plaintiffs had, however, given possession of the remaining land of Schedule A with respect to nine Chhatak to his nephew. It was stated that Schedule C land measuring nine Chhatak was left out after transferring of Schedule B land from Schedule A land. It was stated that the defendant claimed that he had purchased the Schedule B land from the nephews of the plaintiff and on that basis he has been threatening to take possession of the same. It was stated that Schedule C land measuring nine Chhatak was left out after transferring of Schedule B land from Schedule A land. It was stated that the defendant claimed that he had purchased the Schedule B land from the nephews of the plaintiff and on that basis he has been threatening to take possession of the same. It was stated that any document by which the defendant is claiming to have purchased the Schedule B land from his nephew must be forged and fabricated and defendant had no right, title and interest over any portion of the Schedule B or C land, but on 12.7.1970 the defendant forcibly entered into the Schedule B and C land by demolishing the plaintiffs boundary wall and dispossessed him. Hence the suit. 3. The defendant contested the suit by filing written statement and denying the statements made in the plaint and also took several objections regarding maintainability of the suit. It was stated that the lands mentioned in Schedule B and C of the plaint had been purchased by this defendant for valuable consideration from Md. Hussain and Md. Ahmad both sons of Md. Sarfaraj by a registered sale deed dated 2.11.1969 and since then he has been in possession over the same, it is claimed that the sale deed is valid and genuine. It was also pleaded by the defendant that though the sale deed of the defendant mentioned , only one Katha of land but the remaining area described in schedule C of the land was also sold to the plaintiffs predecessor-in-interest and since then the plaintiff has not constructed any boundary wall or tin shed and therefore, there is no question of demolition of the same causing damage to the plaintiff and giving rise to any cause of action for the suit. 4. On the basis of the said pleadings of the parties, the trial Court framed as many as six issues. Out of which, issue No. 3 was not pressed either before the trial Court or before the appellate Court which was regarding genuinity of sale deed executed by Md. Hussain and Md. Ahmed in favour of the defendant on 2.1.1969. Other importnat issue was issue No. 4 as to whether the plaintiff is entitled for declaration of title in respect of Schedule C land. 5. Both the parties led their respective oral and documentary evidences. Hussain and Md. Ahmed in favour of the defendant on 2.1.1969. Other importnat issue was issue No. 4 as to whether the plaintiff is entitled for declaration of title in respect of Schedule C land. 5. Both the parties led their respective oral and documentary evidences. Pleader Commissioners were appointed in course of the trial of the suit. The trial Court, after thoroughly considering the documentary as well as oral evidences, recorded findings on issue No. 4 in favour of the plaintiff and held that the plaintiff has got right, title and interest over the Schedule C land. The other issues were also decided in favour of the plaintiffs and the suit was decreed declaring that the . plaintiffs are the rightful owners of the land described in Schedule C of the plaint and were entitled to get pos- session of the same further directing to the defendant to hand over the vacant possession of the land to the plaintiffs. 6. The defendant then filed a regular appeal before the District Judge, Dhanbad which was ultimately came to be heard and decided by the Additional District Judge-IX Dhanbad. Before the Lower Appellate Court the defendant- appellant assailed the judgment and decree of the trial Court on the grounds that the findings of the Court below arc not sound and legal. The Lower Appellate Court after hearing both parties and having considered all the evidences and materials on record has categorically dealt with the case issue- wise and held that the sale deed executed by Md. Hussain and Md. Ahmed to defendant on 2.1.1969 is a valid document and defendant had acquired valid right, title Interest over the Schedule B Land by virtue of sale deed. On issue No. 4 the learned lower appellate Court considering the materials and evidences on record thoroughly concurred with the findings of the trial Court and held that the plaintiff has got right, title and interest over the Schedule C land and dismissed the appeal. 7. Mr. Mahesh Tiwari learned counsel appearing for the appellant has vehemently argued before me that so far as the Schedule C land is concerned, the same has not been properly ascertained and identified and the vagueness in the identity of the land has seriously prejudiced the defendant. 7. Mr. Mahesh Tiwari learned counsel appearing for the appellant has vehemently argued before me that so far as the Schedule C land is concerned, the same has not been properly ascertained and identified and the vagueness in the identity of the land has seriously prejudiced the defendant. It was further stated that Schedule C, which is being understood by the plaintiff is actually land belonged to the Railways and decree to that extent is not legal and valid. According to the learned counsel for the appellant, if the proper measurement is made by an expert, if will be found that the Schedule C Land is still vacant and the same is in fact a demarcation line between the land of the plaintiffs and the defendant. Although there may have some substance in the submission of the learned counsel appearing on behalf of the appellant but ascertaining the identity of a land is question of fact and such question cannot be entertained and determined in a second appeal. If according to the appellant the said land can be found vacant on proper measurement resolving the dispute, that can be always done without interfering with the impugned judgment and decree and the concurrent findings of facts which have been arrived at by the Courts below on the issue involved in the instant case. 8. Mr. Rajesh Lala learned counsel appearing for the respondents submitted that said submission is beyond the pleading of the defendants-appellants and has got no substance. Since I have not gone into the merit of such submission, it is necessary to enter into the said question. 9. In that view of the matter, I find no merit in this appeal which is accordingly dismissed.