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2010 DIGILAW 412 (ALL)

Suresh Thakur v. Jag Narain

2010-02-01

RAKESH SHARMA

body2010
JUDGMENT Hon'ble Rakesh Sharma,J. This second appeal has been preferred against the judgment and order dated 19.5.1977 passed by Ist Additional District and Sessions Judge, Ghazipur in Civil Appeal No.156 of 1976 affirming the findings recorded by IV Additional Munsif, Ghazipur by judgment and decree dated 22.5.1976. It emerges from record that the plaintiff-appellant filed a suit for a perpetual injunction for restraining the defendants from interfering in his possession over the land shown by letters F G H C in the plaint map. He has further sought possession over the said land. 2. As per the learned counsel for the appellant, the land in dispute was a part of his ancestral house shown as letter A J H D in the plaint map. There was one room shown by letters B J H C on the eastern side. The wall of the room collapsed due to rains. Thereafter, the plaintiff used the site of the room as a "Sahan" , which was closed to the door 'X". The suit was contested by the defendants. They had categorically denied title and possession of the plaintiff's over the land in dispute. 3. The Trial Court had dismissed the plaintiff's suit on 22.5.1976 and being aggrieved, the appeal was preferred, which was also dismissed by the First Appellate Court on 19.5.1977. 4. A perusal of the judgment and order rendered by the two courts below reveal that both the courts below had recorded findings of fact that the plaintiff was neither owner nor in possession over the land in dispute. It was barred by principle of Estoppel and Acquiescence The Trial Court had taken note of the oral and documentary evidence. The Trial Court had framed five issues covering the dispute. The Trial Court had also considered the Amin's report and other materials available on record. Contradictions were found in the statements of plaintiff's witnesses. Even in the plaintiff's statement, there were contradictions regarding identity of the property. The Trial Court had noticed all these contradictions while deciding issue no.1. It was not in consonance with the revenue entries, plot no.1468 covered the land in dispute, which was in the name of Swarath Pandey and others. In the Amin's report it was mentioned that the same was inside the wall not outside on the eastern side. The Trial Court had noticed all these contradictions while deciding issue no.1. It was not in consonance with the revenue entries, plot no.1468 covered the land in dispute, which was in the name of Swarath Pandey and others. In the Amin's report it was mentioned that the same was inside the wall not outside on the eastern side. The plaintiff has failed to demonstrate the plot numbers and identity of the plot and other details like existence of doors, whether it was opened or closed. Both the courts below had considered the material on record and arrived at the conclusion that plaintiff has failed to establish his case and he was not in a possession over the land in dispute. Factual disputes was set at rest by the two courts below. 5. In view of above, it is clear that both the courts below have recorded concurrent findings of fact based on oral and documentary evidence and other materials available on record. No substantial question of law arises to be considered in this Second Appeal to persuade this Court to deal with the matter. No ingredients or elements as required to be attracted under Section 100 of the Code of Civil Procedure are available in this case. This court has also scrutinized this case in the light of the law laid down by the Hon'ble Apex Court in the judgments reported in AIR 2008 SC 1749 , Kashmir Singh Vs. Harnam Singh and another, AIR 1999 SC 2213 , Kondiba Dagadu Kadam Vs. Savitribhai Sopan Gujar and Others and (1995) 6 SCC 213 , Kashibai W/O Lachiram and others and does not find any ingredients as required under Section 100 of the Code of Civil Procedure are attracted in the present case. 6. In view of the above, no substantial question of law arises to be considered. Accordingly, the Second Appeal is dismissed.