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2004 DIGILAW 732 (ALL)

Sarjoo v. Radhey Shyam

2004-04-02

TARUN AGARWALA

body2004
JUDGMENT : Tarun Agarwala, J. The Plaintiff filed a suit for a permanent injunction praying that the Defendant be directed to remove the wall and other constructions raised during the pendency of the suit and also praying for the possession of the land. The Plaintiff alleged that the disputed piece of land was being used by the Plaintiff as a sehan for the last 60 years and that the Defendants had no concern with the said land. It was alleged that in June, 1974, the Defendant No. 1 constructed the wall and during the pendency of the suit he had illegally made some constructions on the said land. 2. The Defendant in his written statement contended that he was in possession of the disputed property for the last 100 years and had also purchased the same vide sale deed dated 20.1.1981. The Defendant alleged that the Plaintiff was never in possession of the land in question. 3. The trial court after framing the issues, decreed the suit of the Plaintiff holding that the evidence led by the Plaintiff was more reliable and that the Plaintiff had proved that he had been using the land in question for tethering cows and for other household purposes. The trial court further held that the land in question was appurtenant to the Plaintiff's house and that the Defendant's house was separated by a lane. On the basis of the evidence led by the parties, the trial court found that the Plaintiff was the owner of the land in question. The trial court further found that the Defendant could not prove that he was in possession of the land for the last 100 years or from before the date of the vesting under the U.P.Z.A. and L.R. Act. The trial court further held that the sale deed dated 20.1.1981 was void inasmuch as the seller had no right to sell the property in favour of the Defendant. The trial court also found that the Defendant had illegally raised the construction and had illegally taken possession of the land in question. The trial court accordingly decreed the suit and directed the Defendant to remove the construction and to hand over the possession of the land in question to the Plaintiff. 4. Aggrieved by the decree of the trial court, the Defendant preferred an appeal. The trial court accordingly decreed the suit and directed the Defendant to remove the construction and to hand over the possession of the land in question to the Plaintiff. 4. Aggrieved by the decree of the trial court, the Defendant preferred an appeal. The appellate court allowed the appeal and dismissed the suit of the Plaintiff. The appellate court held that the description of the land of the property was not properly given and that the disputed land in question was not the sehan of the Plaintiff and that the Plaintiff had failed to prove his ownership. 5. The Plaintiff has now preferred the present second appeal before this Court. At the time of the admission of the appeal, the following substantial questions of law was formulated, namely: (1) Whether the lower appellate court was justified in allowing the appeal without discussing any evidence on record regarding merits and whether such a judgment can be sustained? (2) Whether the lower appellate court was justified in allowing the appeal and deciding the whole controversy on the basis of the inspection report? (3) Whether the judgment of the lower appellate court is in accordance with Order XLI, Rule 31, Code of Civil Procedure? 6. Heard Sri. B.N. Agarwal, the learned Counsel for the Plaintiff-Appellant and Sri. Alok Kumar Yadav, the learned Counsel for the Defendant-opposite party. 7. The learned Counsel for the Appellant submitted that the appellate court had non-suited the Appellant on irrelevant grounds and that the decree passed by the trial court had been illegally reversed by the trial court without meeting out the reasoning or discussing the evidence given by the trial court. The learned Counsel for the Appellant further submitted that the appellate court allowed the appeal only on the basis of the inspection report, for which no opportunity of filing an objection was given to the Plaintiff. The counsel further submitted that the appellate court had erred in holding that the description of the property given by the Plaintiff was incorrect and that it was based on misreading of the statement made under Order X, Rule 2 of the Code of Civil Procedure, inasmuch as there was no major discrepancy in the description of the property given by the Plaintiff and that the land was clearly identifiable. 8. 8. On the other hand, the learned Counsel for the Defendant submitted that the Plaintiff had miserably failed to prove his case that he was the owner or that he was in possession of the land in question. The Defendant further contended that there was no sehan of the Plaintiff since there existed no door towards the west of the Plaintiff's house. The Defendant further submitted that the land was not identifiable and therefore, the suit could not be decreed in the absence of a proper description of the property in question. The learned Counsel further submitted that the Plaintiff must prove his case and cannot succeed on the weakness of the Defendant's case and in support of this submission, has relied upon a decision of the Supreme Court in Brahma Nand Puri v. Neki Puri AIR 1965 SC 1506 . The learned Counsel for the Defendant further submitted that the finding of fact arrived at by the lower appellate court could not be set aside in a second appeal as held in Laxman Prasad/Mahabir Prasad and Ors. v. Ram Kumar Singh 1993 ALR 315 319at. The learned Counsel for the Defendant further submitted that no substantial question of law arises in the present appeal and therefore, this Court should not interfere with the judgment passed by the lower appellate court. 9. The claim of the Plaintiff is based on Section 9 of the U.P.Z.A. and L.R. Act. The Plaintiff is claiming possession of the land in question on the ground that he was continuously using the land for other household purposes for the last 60 years. The Plaintiff has categorically stated that the land was appurtenant to his house and that he was in possession of it. The Defendant in order to prove his case has led evidence to the extent that the land in question had been continuously in use for the last 60 years for other household purposes and further submitted that the land in question was appurtenant to their house. On the basis of the evidence led by the Plaintiff, the trial court decreed the suit holding that the Plaintiff was the owner of the land in question. On the basis of the evidence led by the Plaintiff, the trial court decreed the suit holding that the Plaintiff was the owner of the land in question. The appellate court reversed the decree of the trial court on the sole ground that since no door existed towards the West of the Plaintiff's house, therefore, there was no sehan of the Plaintiff on the West of the house and on this basis the appellate court had dismissed the suit. 10. The Plaintiff is claiming the land as his sehan and is taking the benefit of the Section 9 of the U.P.Z.A. and L.R. Act, which reads as under: 9. Private wells, trees in abadi and buildings to be settled with the existing owners or occupiers thereof. (All wells) trees in abadi and all buildings situate within the limits of an estate belonging to or held by an intermediary or tenant or other person whether residing in the village or not, shall continue to belong to or be held by such intermediary tenant or person, as the case may be, and the site of the wells or the buildings within the area appurtenant thereto shall be deemed to be settled with him by the State Government on such terms and conditions as may be prescribed. 11. The word appurtenant has not been defined under the Act. The Supreme Court in Maharaj Singh Vs. State of Uttar Pradesh and Others, (1977) 1 SCC 155 , has explained the meaning of word "appurtenant. 26. 'Appurtenance' in relation to a dwelling, or to a school, college includes all land occupied therewith and used for the purposes thereof (Words and Phrases Legally Defined Butterworths, 2nd Edn.). The word 'appurtenances' has a distinct and definite meaning...Prima facie it imports nothing more than what is strictly appertaining to the subject-matter of the devise or grant and which would, in truth, pass without being specially mentioned ordinarily, what is necessary for the enjoyment and has been used for the purpose of the building, such as easements, alone will be appurtenant. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression 'appurtenance'. 12. Therefore, "appurtenant" means the open piece of land for the beneficial enjoyment of the building. Therefore, what is necessary for the enjoyment of the building is alone covered by the expression 'appurtenance'. 12. Therefore, "appurtenant" means the open piece of land for the beneficial enjoyment of the building. It is, therefore, clear that before a person is entitled to claim a settlement u/s 9 of the Act, it must be found that the land was necessary for the enjoyment of the building and that the person had been using the land for other household purposes since before the date of vesting under the Act. Thus, the lower appellate court has to consider whether the land in question was being used by the Plaintiff for the beneficial enjoyment of the building since before the date of vesting which has to be found out from the evidence led by the parties. The view taken by the lower appellate court that since the door does not exist towards the West of the Plaintiff's house, the land in question could not be used as a sehan by the Plaintiff is baseless and against the provision of Section 9 of the Act. It is not necessary that a door must exist in front of the sehan for the Plaintiff to enjoy or use the land in question for other household purposes. The land in question can be located on any side of the house and it is not necessary that a door should open on the land in question. The court below has to give a finding on whether the land in question was being enjoyed by the Plaintiff for the beneficial use of the building, i.e., to say that the land in question was being used for other household purposes. In my view the lower appellate court has not dealt with this matter in the right perspective. 13. The learned Counsel for the Appellant has vehemently contended that the finding of the appellate court that no door existed towards the West of the house is against the evidence on record. However, I need not dwell on this aspect of the matter inasmuch as, I feel that the matter is liable to be remanded back to the lower appellate court where it is open to the parties to agitate the matter afresh. 14. However, I need not dwell on this aspect of the matter inasmuch as, I feel that the matter is liable to be remanded back to the lower appellate court where it is open to the parties to agitate the matter afresh. 14. I, further find that the appellate court has allowed the appeal relying upon the inspection report dated 28.4.1989 without giving any opportunity to the parties to file an objection to the said inspection report. The inspection report is dated 28.4.1989 and within a month thereafter, the appellate court passed the judgment on 27.5.1989. Since the matter is being remanded back to the lower appellate court, the parties are at liberty to reagitate the issue on the question of the description of the property. I further find that the appellate court while deciding the appeal has not considered the findings and reasoning given by the trial court. 15. In view of aforesaid, I am of the opinion that the lower appellate court did not evaluate the oral evidence of the parties regarding the appurtenant land. It is not proper for this Court to evaluate the oral evidence in the exercise of its powers conferred by Section 100 of the Code of Civil Procedure. Since the question as to whether the land in question is appurtenant to the Plaintiff's house is a question of fact, it would not be proper for this Court to evaluate the oral evidence and give a finding on it. It would, therefore, be proper that the oral evidence be evaluated by the lower appellate court. 16. Accordingly the present appeal is allowed and the judgment of the lower appellate court dated 27.5.1989 in Civil Appeal No. 368 of 1986 is set aside and the matter is remanded back to the lower appellate court to decide the appeal afresh in the light of observations made above, as far as possible within a period of three months from the date of the production of the certified copy of the judgment before the lower appellate court. The registry is directed to transmit the record of the case to the lower appellate court within two weeks from today. In the circumstances of the case, there shall be no order as to cost.