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2012 DIGILAW 375 (ALL)

Gaya Prasad v. Nathu Ram

2012-02-09

SIBGHAT ULLAH KHAN

body2012
Sibghat Ullah Khan, J.;- Heard learned counsel for the parties. This is plaintiff's second appeal arising out of O.S. No.265 of 1975. The suit was decreed by Munsif, Orai on 09.01.1976 and defendant respondent was directed to deliver possession of the house in dispute. Against the said decree defendant respondent filed Civil Appeal No.21 of 1976, which was allowed on 29.08.1978 by III A.D.J., Jalaun at Orai. Judgment and decree passed by the trial court was set aside and suit was dismissed hence this second appeal by the plaintiff. The case of the plaintiff was that his father Kalka Prasad was tenure holder (hereditary tenant) of plot No.113 area 0.27 acres over a part of which he constructed the house 25 years before and gave the same on licence in 1952 to the defendant and his brother. It was further pleaded that the plaintiff got vacated the house from the defendant and his brother in 1956 however it was again given on licence to defendant in 1969. Defendant asserted that the house was constructed by his father 40 years back (in or about 1935) over 0.07 acre land of plot which was given to him by the Zamindar and the tenure holder Kalka Prasad (father of the plaintiff) and since then his father and after him he was in constant possession thereof. This appeal was admitted on 05.07.1979 on substantial question of law as stated in Ground No.4(a), which is quoted below: "Because the appellant having proved clearly that he was owner of the site; and the defendant having failed to prove any building, licence or title in the building material, the lower appellate court legally erred in not raising a presumption under Section 14 (sic.114) of Evidence Act in favour of the plaintiff; about ownership of the building material." Lower appellate court held that plaintiff was unable to establish that the house was constructed by his father in or about 1952 and he has not been able to establish his title. It has further been held that defendant has proved that he and his father had been living in the house in dispute since before 1952, which supported his case that the house was constructed by his father. On Point No.2, it was held by lower appellate court that defendant or his father was not licensee in the house. It has further been held that defendant has proved that he and his father had been living in the house in dispute since before 1952, which supported his case that the house was constructed by his father. On Point No.2, it was held by lower appellate court that defendant or his father was not licensee in the house. The allegation of plaintiff that the house was vacated by the defendant in 1956 and again given to him on licence in 1969 was also not found proved by lower appellate court. The judgment of the trial court was rather cryptic. Application filed by appellant for permission to adduce additional evidence under order XLI Rule 27 was rejected on 11.10.2011, the date on which arguments were heard and judgment was reserved. The plaintiff had stated that in the village in question there was no barber hence defendant's father who was a barber was brought in the village and provided the house to reside as licencee. The lower appellate court rightly held that the plaintiff failed to show that if the above allegation was correct then why defendant's father was turned out from the house in 1956 and thereafter where he resided in the village. Plaintiff stated that he occupied the house for 13 years from 1956 to 1969 however in his evidence he could not give details of the house. He stated that he was not aware as to whether there were windows in the rooms of the house or not. He also expressed his ignorance about the number aalas in a particular wall. Absolutely no reason was given by the plaintiff for vacation of the house in 1956 by the defendant and grant of fresh licence by the plaintiff to the defendant in 1969. In 1953, a suit being O.S. No.156 of 1953 was filed against defendant by another person Matadin. The suit was dismissed. The documents (plaint and judgment etc.) of the said suit were admissible in evidence under Section 13, Evidence Act. Lower appellate court also rightly held that it was not probable that plaintiff's father would have constructed the house just to give it on licence to defendant's father. Lower appellate court held that plaintiff completely failed to prove that he occupied the house from 1956 to 1969 and he could not even state that for what purpose he used the house during the said period. Lower appellate court held that plaintiff completely failed to prove that he occupied the house from 1956 to 1969 and he could not even state that for what purpose he used the house during the said period. Extract of kutumb register (Ex.A-1) filed by the defendant proved that he was in continuous possession. Regarding grant of licence it was stated by the plaintiff that in the year 1952 licence was granted for the purpose of having a barber in the village. However it was not stated by the plaintiff that for what purpose licence was again granted in 1969. If the site over which house is constructed belonged to the plaintiff before 1952 still no presumption can be drawn that the house was constructed by him under Section 114 of Evidence Act. Defendant's case was that the Zamindar with the consent of the father of the plaintiff who was hereditary tenant gave the land to the defendant and he constructed the house thereupon. In such scenario the mere fact that prior to 1950 or 1952 when the house was constructed father of the plaintiff was hereditary tenant of the site thereof does not warrant drawing of any inference regarding ownership of the construction in favour of the plaintiff. Accordingly, the question of law framed at the time of admission of appeal is decided against the appellant and in favour of the defendant. Second appeal is therefore dismissed.