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2010 DIGILAW 1506 (ALL)

Ram Asrey v. Sukh Devi

2010-05-07

RAKESH TIWARI

body2010
JUDGMENT Hon. Rakesh Tiwari, J. Heard counsel for the appellant and perused the record. 2. The plaintiff respondent instituted original suit no. 117 of 2002, in the court of Civil Judge (J.D.), Kannauj, seeking permanent injunction restraining the defendant appellants from interfering with her possession and raising any construction over Arazi Khasra No. 379, area 0.243 hectare, situated in Mauza Tusawari, Pergana and Tehsil Tirwa, district Kannauj. 3. The suit was contested by the defendant appellants. In their written statement, they denied the plaint allegations stating that they have no concern with Arazi Khasra no. 379 aforesaid which belongs to the plaintiff respondent and that they have purchased a tubewell alongwith Kothari, boring, well, naali and hauz situated towards southern eastern corner of the land in dispute. Case of the defendant appellants was that aforesaid tubewell was purchased by the appellant no. 1 alongwith his brother Daya Ram from the real owners Shiv Dayal, Harish Chandra sons of Prasad and Bhikhari Lal son of Durga Prasad for a sale consideration of Rs. 10000/- on 1.8.1998 and since that date, they are in actual and physical possession over the same. It was prayed that since the defendant appellants admittedly have no concern with the land in dispute, hence the suit is liable to be dismissed. 4. Spot inspection was made by the Amin who submitted his report dated 20.3.2002. The trial court decreed the suit in favour of the plaintiff respondent as against the defendant appellants, vide judgment and decree dated 5.4.2008. 5. Aggrieved by the aforesaid judgment and decree, the defendant appellants preferred civil appeal no. 47 of 2008, Ram Asrey and another Vs. Smt. Sukh Devi, which was also dismissed vide judgment and decree dated 21.1.2010. The present second appeal has been filed challenging the aforesaid judgment and decrees passed by the courts below. 6. Contention of the counsel for appellant is that the courts below have omitted to consider the sale letter which demonstrated that defendant appellant alongwith his brother Dayaram had purchased the tubewell alongwith Kothari, boring, well, naali and hauz from the real owners Shiv Dayal, Harish Chandra sons of Prasad and Bhikhari Lal son of Durga Prasad, for a sale consideration of Rs. 10000/- on 1.8.1998 and since then they are in actual possession over it. 10000/- on 1.8.1998 and since then they are in actual possession over it. It is further submitted that the courts below have failed to appreciate that inspection by the Amin was ex parte and yet report of the Amin has been taken into consideration in favour of the plaintiff respondent as against the defendant appellant, and as such the finding recorded by the court below to the effect that tubewell is situated on the land in dispute is based on surmises and conjectures and against the evidence on record. 7. After hearing the submissions and perusing the record, it appears from the impugned judgments that court below has considered the fact that defendant appellants have admitted that plot no. 379 belongs to the plaintiff which is arrayed as plaintiff respondent in the present second appeal. Their own witnesses D.W.-1 Ram Asrey and D.W.-2 have supported the averments in the written statement filed by the defendant appellants, and in their cross examination,it has been stated that area of the land is correct but ownership of tubewell is not correct as it belongs to Gaon Sabha being attached to the land of Gaon Sabha. The court below has raised a serious doubt that if the tubewell was installed on the land of Gaon Sabha, then how could Shiv Dayal, Harish Chand and Bhikhari be its owners, who are said to have aforesaid tubewell to the defendant appellants. The court further recorded that in their paper No. 70 A (sale agreement), Shiv Dayal, Harish Chand and Bhikhari have not stated anything which could show that they were the owners of the tubewell. 8. It is settled law that anything attached to the earth would belong to the person to whom the land belongs. Since the tubewell is on the land of Gaon Sabha, the same belongs to it. No person can transfer better rights than are enjoyed by him. Shiv Dayal, Harish Chand and Bhikhari who had share in the land purchased by them from Patiram, should have proved as to how Patiram was the owner of the land purchased by them which was transferred to them vide sale deed paper no. 20 G. It is also not mentioned in the said agreement that any tubewell situates over it. The agreement deed paper no. 17 A regarding purchase of tubewell, is an unregistered document, hence not admissible in evidence. 20 G. It is also not mentioned in the said agreement that any tubewell situates over it. The agreement deed paper no. 17 A regarding purchase of tubewell, is an unregistered document, hence not admissible in evidence. In such circumstances, the court below appears to have rightly come to the conclusion that if tubewell would have been situated in Gata No. 379, then the same would have found a mention in the registered sale deed dated 17.11.1987 but in the sale deed there is no mention of tubewell rather it is mentioned therein that land is irrigated by Golawa no. 38. The defendant appellants themselves have admitted that they have no concern with plot no. 379. 9. For the reasons stated above, there appears to be no illegality or infirmity in the impugned judgments. Since the defendant appellants failed to prove that they could have purchased the tubewell belonging to the Gaon Sabha, they have no case and the courts below have rightly recorded findings of fact against them. In my considered view, findings of fact in this case do not require any interference and no substantial question of law arises for determination in this appeal on the aforesaid facts. 10. The second appeal is accordingly dismissed. No order as to costs.