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2013 DIGILAW 1072 (MP)

Sughar Singh v. Vidyaram

2013-09-06

G.D.SAXENA

body2013
JUDGMENT G. D. Saxena, J.:- 1. This appeal under section 96 of the Code of Civil Procedure, 1908 by the defendant/appellant has been preferred against a judgment and decree dated 9th September, 2009 rendered in Civil Suit No. 18A/2009 by the Fourth Additional District Judge Bhind (M.P.) thereby decreeing the suit for declaration and perpetual injunction over the plot under dispute situated in village Vikrampura, district Bhind M.P. 2. The facts, in short, are that plaintiffs/respondents No. 1 and 2 are the owners of the suit land i.e. a vacant plot comprised in area 0.28, which is part of Survey No. 628/1, situated in village Vikrampura Tahsil and District Bhind, on the basis of sale-deed executed by the previous owner Mungaram, son of Parsuram in favour of Bhanwar Prasad, father of the plaintiffs. After death of Bhanwar Prasad, the plaintiffs acquired the title and ownership over the land. It is stated that when they were making constructions on their vacant plot, “the defendants tried to obstruct in their peaceful possession and also interrupted in raising construction on the plot on the ground that the disputed land is a part of Survey No. 629/2 owned by them and their open Courtyard is already in existence. On these grounds, the defendant/appellant objected in raising constructions. The learned trial Court after recording the evidence of the parties and considering the evidence on record decreed the suit in favour of the plaintiffs/respondents No. 1 and 2 restraining the defendant/appellant from interfering into possession of the plaintiffs over the suit land. Being aggrieved by the judgment and decree, the defendant/appellant has preferred this appeal. 3. The contention of the appellant/defendant is that the judgment and decree under appeal is passed without properly evaluating the evidence on record and the law, hence, the same is liable to be set aside. It is submitted that the alleged sale-deed of the disputed land does not disclose the proper descriptions of the sold land. Even the descriptions regarding the length, width and boundaries of the land are not properly mentioned. It is therefore submitted that the land under dispute covers Survey No. 629/2 belonging to the appellant, which was in his peaceful possession till 26th February, 1997 without any interruption but the said fact has been ignored by the learned Court-below while passing a decree in restraint manner. It is therefore submitted that the land under dispute covers Survey No. 629/2 belonging to the appellant, which was in his peaceful possession till 26th February, 1997 without any interruption but the said fact has been ignored by the learned Court-below while passing a decree in restraint manner. Accordingly, it is prayed that the appeal filed may be admitted and the judgment and decree may be set aside. 4. On the other hand, the respondents No. 1 and 2/plaintiffs in whose favour the suit was decreed by the learned trial Court vehemently opposed and submitted that his father purchased the land under dispute which is a part of Survey No. 628/1, having an area 0.28 out of total area 0.146 from previous owner Mungaram and Parsuram, sons of Ramdayal by way of registered sale deed dated 20th November, 1978. The aforesaid sale deed was proved by the attesting witness Radha Mohan (PW-4). It is submitted that after death of their father on 18-11-2004, the plaintiffs became owners of the sold land and accordingly their names were mutated. It is submitted that for raising construction on the land, the land was demarcated and after getting NOC from the Nazul Dept. the boundaries were raised. In these circumstances, it is prayed that the learned trial Court after considering the evidence on record rightly decreed the suit in their favour and therefore the appeal filed by the appellant deserves to be dismissed by confirming the findings of the learned Court-below. 5. Heard the learned counsel for the parties. Also perused the record of the case and the law on the points involved. 6. The question for consideration in this appeal is whether the trial Court was justified in holding that the land in dispute is under exclusive ownership and possession of the plaintiffs and/or whether the land under dispute is part of Survey No. 629/2 belonging to the defendant/appellant and he was in possession of the same from the beginning ? 7. From the pleadings and nature of the suit, it is clear that there could be nothing in the present suit which would have been in the personal knowledge of the plaintiffs alone. Facts involved herein can be and have been rightly held to be duly proved by the statement of plaintiff Vidyaram (PW-1). 7. From the pleadings and nature of the suit, it is clear that there could be nothing in the present suit which would have been in the personal knowledge of the plaintiffs alone. Facts involved herein can be and have been rightly held to be duly proved by the statement of plaintiff Vidyaram (PW-1). It is further admitted fact that the respondents No.1 and 2/plaintiffs are owners of the disputed land on the basis of sale-deed dated 20th November, 1978 executed in favour of the father of plaintiffs. It is also admitted that the defendant/appellant is owner of the land comprised in Survey No. 629/2 which is adjacent to the land under dispute. Learned counsel for the parties also admitted that the lands of the area were agricultural lands but later on were converted in to residential area. The purchasers of the plots situated over the land constructed the residential premises and started residing there. Plaintiff Vidhyaram (PW-1) admitted in his deposition that his father purchased the land under dispute in agriculture measurement, i.e., 0.28 and not in square meter/feet out of 0.146 total area of Survey No. 628/1. He also admitted that no boundary of the sold land was mentioned in the registered sale deed. He stated that prior to the suit of the plaintiffs, the land under dispute was surveyed by the Revenue Inspector (Nazul) in the presence of the parties and upon the basis of the revenue records and the report of survey available before the Nazul Deptt., the authority issued no objection certificate for diversion and permission for construction to plaintiffs which proves the existence of the land under dispute. Appellant Sughar Singh (DW-1) deposed before the trial Court that he purchased the land comprised in Survey No. 629/2 having an area of 70 x 70 feet through his brother Babu Singh in the year 1992 from Sukhlal and thereafter he constructed the Courtyard over the purchased land. He admitted that he never sought permission for diversion nor applied for permission for construction over the purchased land. He frankly stated that the land belonging to him was never surveyed by the revenue authority. Thus, considering the evidence on record and in the light of the contentions, it is proved that the Survey No. 628/1 is part of area of 0.28 which is exclusively owned by the plaintiffs/respondents No. 1 and 2. He frankly stated that the land belonging to him was never surveyed by the revenue authority. Thus, considering the evidence on record and in the light of the contentions, it is proved that the Survey No. 628/1 is part of area of 0.28 which is exclusively owned by the plaintiffs/respondents No. 1 and 2. Though much emphasis has been led on the submission that the plaintiffs have not proved their title in respect of dominant heritage, the learned trial Judge after recording the evidence has clearly held that defendant/appellant had no legal right or title over the land in question and by applying principle of preponderance of probabilities, it has been rightly found that the plaintiffs have succeeded in establishing for the purpose of suit that dominant heritage belongs to them. The defendant/appellant has not placed on record either sale-deed or any other documents in support of their aforesaid plea and therefore they utterly failed to prove by placing cogent evidence on record that the disputed land is a part of Survey No. 629/2. 8. Resultantly, this Court does not find any merit in this appeal. Accordingly, it fails and is hereby dismissed with costs. Counsel fee Rs. 1,000/-, if certified. Appeal dismissed.