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2013 DIGILAW 487 (PAT)

Dayanand Yadav v. Bindeshwari Yadav

2013-04-11

CHAKRADHARI SHARAN SINGH

body2013
ORDER Heard learned counsel for the appellants. 2. The appellants are aggrieved by the judgement and decree dated 04-08-2010 and 17-08-2010 respectively, passed by learned Additional District Judge, Fast Track Court No.-II, Madhepura in T.A. No. 01/2001 whereby he is said to have partly allowed the appeal against the judgement and decree dated 28-11-2000 and 14-12-2000 respectively, passed by learned Additional Munsif, IV, Madhepura in T.S. No. 125/1992. Appellants were the plaintiffs before the trial court. 3. The present second appeal has been placed before me for hearing under Order 41 Rule 11 of the Code of Civil Procedure. 4. The plaintiff/ appellant filed the suit for declaration of his title over the suit land as described in schedule 1 to the plaint and also for recovery of possession over the suit land as mentioned in schedule 1 and 2 of the plaint. The parties, in the present order, have been described as per their party position in the suit. 5. The plaintiff pleaded that he had got his residential house over a plot appertaining to C.S. khata No. 93, C.S. plot No. 4022 and 4023 admeasuring 14 decimals and 10 kari. Adjacent south of the said plot, according to plaintiff, there is Gairmazarua Aam land (on plot No. 3829) which was being used as way for public in general. The said road, according to plaintiff, goes from east to west. The plaintiff pleaded that the defendants first party forcibly encroached upon the said 14 decimals of land of the plaintiff on 06-06-1992 and closed the way of the plaintiff and the public at large which was on Gairmazarua Aam land on plot No. 3829. 6. The defendants, on the other hand, contested the suit and filed written statement. They pleaded that the C.S. plot No. 3829 was never a public road and that they never encroached upon the suit land. The defendants contended that one Gorelal Yadav had his house over C.S.P. No. 3829 and after the death of Gorelal Yadav his son Fanilal Yadav came in possession over the said C.S. plot No. 3829. Fanilal Yadav sold 6 decimals of land to Dhaneshwari Prasad Yadav by virtue of sale deed dated 28-10-1970 and since then Dhaneshwari Prasad Yadav had been in possession over the same. The defendants first party, who are respondents first party herein, claimed that they had not encroached upon the land of the plaintiff. Fanilal Yadav sold 6 decimals of land to Dhaneshwari Prasad Yadav by virtue of sale deed dated 28-10-1970 and since then Dhaneshwari Prasad Yadav had been in possession over the same. The defendants first party, who are respondents first party herein, claimed that they had not encroached upon the land of the plaintiff. They did not claim their title over the land mentioned in schedule 1 of the plaint. The defendants first party contended that the land mentioned in schedule 2 of the plaint was not a public road in use of and occupation of the plaintiff and general public and in fact they had right, title and interest over the suit property. 7. On the basis of respective pleadings, learned trial court framed seven issues including issues No. iv, v and vi which read as follows:– “(iv) Whether the plaintiff has got subsisting title over suit land mentioned in schedule I of plaint? (v) Whether the plaintiff is liable to get recovery of possession over the suit land mentioned in schedule 1 of the plaint? (vi) Whether the defendants are trespassers over the suit land mentioned in schedule 2 of the plaint and whether the defendants are liable to be evicted fro the suit land mentioned in schedule 2 of the plaint?” 8. After issues having been framed, the parties led their evidence, both oral and documentary. Learned trial court, on the basis of evidence available on record, while deciding issues No. iv and v came to a finding that the defendants had encroached upon the land of plaintiff mentioned in schedule 1 of the plaint and held that the plaintiff/ appellants had subsisting title over the suit land mentioned in schedule 1 of the plaint which the defendants had encroached upon. As regards the property described in schedule 2 of the plaint, learned trial court decided the issue in favour of plaintiff holding that the defendants were trespassers over the suit land and were liable to be evicted. 9. Aggrieved by the findings, judgement and decree of the trial court, the defendants filed an appeal bearing Title Appeal No. 1/2001 which was heard and decided by learned Additional District Judge, Fast Track Court- II, Madhepura. 9. Aggrieved by the findings, judgement and decree of the trial court, the defendants filed an appeal bearing Title Appeal No. 1/2001 which was heard and decided by learned Additional District Judge, Fast Track Court- II, Madhepura. Learned first appellate court, on the basis of evidence on record, formulated four points for consideration including the following three:– “(i) Whether the plaintiffs/ respondents have got right title over the suit land as described in schedule I of the plaint? (ii) Whether the suit land as described in schedule II of the plaint is Garmajarua Aam land and the defendants/ appellants are trespassers over the same and they are liable to be evicted from the said Garmajarua land? (iii) Whether the story of forcible dispossession of the plaintiffs by the defendants from the land as described in schedule I of the plaint?” (quotes are verbatim) 10. Learned first appellate court, dealing with point No.1, concurred with the finding of fact arrived at by learned trial court and held that plaintiff had subsisting right over the land as described in schedule 1 of the plaint. However, dealing with the property as described in schedule 2, learned first appellate court reversed the finding of the trial court and came to a conclusion that the defendants were not trespassers over the plot No. 3829 rather, they were recorded tenants and, as such, they could not be evicted from the land as described in schedule 2 of the plaint and, thus, decided the point against the defendants. 11. This is how learned first appellate court partly allowed the appeal in favour of the defendants. 12. Learned counsel for the appellants has submitted that the finding of fact arrived at by learned first appellate court holding title of the defendants first party over the suit land is perverse and is contrary to evidence available on record. He submitted that schedule 2 property was a Gairmazarua Aam land which was evident from the evidence of PW 5, the plaintiff, PW 2 and PW 3. Learned counsel for the appellants has further submitted, with reference to exhibits 3 and 4, the order dated 29-11-1969 passed in case No. 577/68 and the compromise petition filed therein respectively, that there was sufficient material before the courts below to prove that it was a Gairmazarua Aam land. Learned counsel for the appellants has further submitted, with reference to exhibits 3 and 4, the order dated 29-11-1969 passed in case No. 577/68 and the compromise petition filed therein respectively, that there was sufficient material before the courts below to prove that it was a Gairmazarua Aam land. The finding of the first appellate court on schedule 2 property, he submits, is contrary to the evidence available on record. 13. From the judgement of learned first appellate court, it appears that it has duly considered these two exhibits, that is, exhibits 3 and 4, relied upon by the appellants. Dealing with compromise petition filed by the parties in case No. 577/68, learned first appellate court came to a finding that there was no admission of the parties that plot No. 3829 was a Gairmazarua Aam land but the admission was only to the extent that there was a way south to the house of the plaintiff and the obstruction would be removed by the parties. Learned first appellate court took into account the evidence by the defendants that the suit plot described in schedule 2 was purchased by the defendants from the son of rightful settlee, Gorelal Yadav, in 1970, that is, after the compromise having been entered into. It also appears that learned first appellate court considered, in detail, the documentary and oral evidence before holding that the plaintiff could not prove their claim that schedule 2 property was a Gairmazarua Aam land being used as public way. 14. I do not find any perversity in the finding of fact arrived at by learned first appellate court as such finding is based on appreciation of evidence available on record. The finding cannot be said to be contrary to any evidence or in the absence of any evidence. In my opinion, thus, the second appeal does not involve any substantial question of law. The second appeal is, accordingly, dismissed.