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2006 DIGILAW 1127 (RAJ)

Bhagwan Singh v. Ramji Lal

2006-04-10

VINEET KOTHARI

body2006
Judgment Dr. Vineet Kothari, J.-This Second Appeal is filed by the plaintiff appellant Bhagwan Singh who lost before the First Appellate Court, the Court of Civil Judge, Bayana. The First Appellate Court vide its Judgment dated 26.09.1992 allowed the appeal of the defendant respondents and the Judgment dated 01.03.1979 and decree dated 06.03.1979 passed by the trial Court, the Court of the learned Munsiff Magistrate, Bayana were set-aside. 2. The plaintiff appellant had filed a suit for possession before the trial Court on 30.01.1973 claiming that the defendant Brij Lal since, deceased had taken the possession forcibly of a plot of land (Gait or Nohara) measuring 70x45 and more particular description is given in the plaint on 04.06.1968 and, therefore, the plaintiff appellant was entitled to get the possession back of the said plot in question. The plaintiff appellant claimed in the plaint that he was living with his Mama the maternal uncle since his childhood and after the death of his maternal uncle he was in continued possession of the said plot of land for the last twenty years and, therefore, the defendant respondents had taken the possession forcibly from the appellant and, therefore, the suit for possession was filed. The plaintiff also stated that in the course of taking forcible possession of the said plot of land, a criminal case No. 197/1968 was also filed before the same Court wherein the defendant respondents were convicted for offences under Sections 323 and 447, IPC, but in an appeal before the learned Sessions Judge, Bharatpur, the defendants were acquitted of the charge of offence under Section 447, IPC, however, they were convicted for offence under Section 323, IPC, and a fine was imposed upon them. 3. Before the trial Court, the plaintiff himself was examined as PW. 1 and stated that he was in possession of the said plot of land (Gait) for the last twenty years and prior that that his maternal uncle was in possession of the said plot of land in question. He had also stated that he had two maternal uncles namely; Lachchhi and Gyarsa but in the plaint there is no mention as to which maternal uncle of these two had given him the said plot. He had also stated that he had two maternal uncles namely; Lachchhi and Gyarsa but in the plaint there is no mention as to which maternal uncle of these two had given him the said plot. During the course of cross-examination, he stated that his maternal uncle Lachchhi had given him the said right of possession in the presence of five other persons who have already expired in Samvat 2000 equivalent to the year 1943. However, he never stated that he was the adopted son the said maternal uncle. About the use of the said plot of land in question by him, he had stated that he used to make cow dung (Upla/Kande) on that plot. He had further stated that his maternal uncles daughters namely; Kishano and Magni also used that plot and later on the wife of his cousin (maternal uncles son Bhanja) used to do the same. However, none of these three ladies were produced in evidence. He also stated in his cross-examination that he had also constructed a boundary wall (Dole) of sand and that work was done by one Ram Khiladi (PW. 2) on contract basis, whereas the said PW. 2, Ram Khiladi in his statement has stated that the said boundary wall was constructed only on the road side of the said plot in question. PW. 3 Nand Kishore also did not vouch for the possession of maternal uncle Lachchi of the plaintiff . 4. On the basis of various witnesses and evidence came on record, the trial Court decreed the suit in favour of the plaintiff appellant. 5. The defendant respondents filed an appeal before the learned Sessions Judge, Bharatpur which was allowed by the said Appellate Court holding that the plaintiff had failed to prove his title over the said land or even the possession over the said plot of land and he had also failed to prove that the defendants had taken the possession by force on 04.06.1968. The Appellate Court held that the plaintiff had failed to establish as to how he came into possession of the plot in question from which maternal uncle out of these two maternal uncles, he was living with one of them and what was his age at the time of death of his maternal uncle Lachchhi. The Appellate Court held that the plaintiff had failed to establish as to how he came into possession of the plot in question from which maternal uncle out of these two maternal uncles, he was living with one of them and what was his age at the time of death of his maternal uncle Lachchhi. He had failed to produce any will of the said maternal uncle or otherwise to show his right to retain possession on the said plot in question. While the appellate Court decided the issue No. 3 about the valuation of the plot of land and also the Court fee, the Issue No. 4 with regard to failure of suit on account of non-disclosure of the name of the maternal uncle in the plaint, the issue No. 5 with regard to locus standi of the plaintiff and issue No. 6 with regard to impleadment of Mst. Champi, Ramji Lal, Mst. Sarbati, Mst. Soni, Mst. Bhagwan Devi, Mst. Kishani and Mst. Bhago as necessary parties to the suit were decided by the appellate Court also in favour of the plaintiff . However, the issue No.1 and 2 were decided against the plaintiff and in favour of the defendant respondents and the appellate Court held that the plaintiff was not entitled to the decree of possession on the basis of the plaint and evidence. 6. Being aggrieved by the said Judgment of the appellate Court, the plaintiff appellant had filed this Second Appeal before this Court under Section 100, CPC. Arguments of both the sides were heard at length and upon perusal of the plaint, written statement and record of the case and having considered the rival submissions made at the Bar, this Court is of the opinion, that the second appeal of the plaintiff appellant itself , has no merit and deserves to be dismissed. 7. The plaintiff appellant had not only failed to establish his possession over the plot of land (Gait) for a long period as claimed by him but the various witnesses who appeared before the trial Court also could not fully support the case of the appellant. 7. The plaintiff appellant had not only failed to establish his possession over the plot of land (Gait) for a long period as claimed by him but the various witnesses who appeared before the trial Court also could not fully support the case of the appellant. The right of plaintiff who claimed to have come into possession over the plot of land from his maternal uncle also appears to be without any foundation as to in what manner, whether by way of will or the plaintiff appellant having been adopted as a son by the said maternal uncle Lachchhi who also had his own family, it is very difficult to believe that such maternal uncle who had no title over the said plot of land for which also there was no indications would give away only the right of possession to the plaintiff . Therefore, the learned appellate Court appears to have rightly arrived at a conclusion that the plaintiff appellant had claimed the possession over the said plot of land without any basis and merely with an intention to illegally occupy such plot of land. He claimed possession over the said land and filed a suit against the defendants and also a criminal case against them. It may be stated that merely because a fine was imposed upon them by the Court of Sessions on the conviction for offence under Section 323, IPC, it cannot mean that the defendants had taken the possession over the said plot of land forcibly on 04.06.1968 as claimed by the plaintiff appellant or that his possession is proved. 8. Learned Counsel for the appellant pressed into service the Judgment of the Honble Supreme Court in the case of Nair Service Society Ltd. vs. K.C. Alexander & Ors., AIR 1988 SC 1165, and also a Judgment of the Kerala High Court in the Case of Kuttan Narayanan vs. Thommun Mathayi, AIR 1966 (Kerala) 179, and submitted that his case is covered by the ratio of the said Judgment s and, therefore, the suit deserves to be decreed in favour of the plaintiff appellant. 9. Having gone through aforesaid two Judgment s, this Court finds that the facts of the aforesaid two Judgment s cited by the learned Counsel for the appellant are distinguishable and not applicable to the facts and circumstances of the present case and also do not support the present case. 10. 9. Having gone through aforesaid two Judgment s, this Court finds that the facts of the aforesaid two Judgment s cited by the learned Counsel for the appellant are distinguishable and not applicable to the facts and circumstances of the present case and also do not support the present case. 10. In the case of Nair Service Society Ltd. vs. K. C. Alexander & Ors., AIR 1968 SC 1165 , the facts of the case were like this:-"The plaintiff filed an appeal in form pauperis. The High Court reversed the decree of the trial Judge and decreed it against the Society and it Manager ordering possession of the entire suit lands with measne profits past and future and compensation for any waste. The High Court held, that the Society had admitted its possession in respect of the entire suit land and that the grant of Kuthakapattam in respect of L(I)(a) to defendants 3 to 6 by the Government was immaterial. The High Court held, that the evidence clearly established that the plaintiff was in possession of the plaint lands atleast from 1924 to 1925 and that it made no difference whether the plaintiff was dispossessed in 110.1939 as stated in the plaint or 24.07.1939 as alleged by the Society. The main controversy, which was decided by the High Court was whether the plaintiff could maintain a suit for possession (apart from a processory suit under the Tranvancore laws analogous in Section 9 of the Indian Specific Relief Act) without proof of title basing himself mainly on his prior possession and whether the Society could defend itself pleading the title of the Government. On both these points the decision of the High Court was in favour of the plaintiff ." The Court further held as under:--"A person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. In the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised." 11. Similarly, in the Case of Kuttan Narayanan vs. Thomman Mathayai, AIR 1966 (Kerala) 179, the Court held, that in a suit for declaration of title and recovery of possession filed beyond six months from the date of dispossession, the plaintiff can merely on the strength of his prior possession which has not extended for the full statutory period and ripened into an absolute title, recover possession from the defendant who is a mere trespasser and who has no title. 12. In both the aforesaid cases cited by the learned Counsel for the appellant are distinguishable on the facts because in the present case, even the possession of the plaintiff has not been proved as discussed in Paragraph No. 7 above. 13. Consequently, I do not find any force in this Second Appeal and the same is accordingly dismissed. 14. There is no order as to costs.