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2013 DIGILAW 899 (ALL)

Najeer Khan (Dead) Through L. Rs. v. Ashia Begum

2013-03-19

SUDHIR AGARWAL

body2013
Sudhir Agarwal, J.— 1. Heard Sri S. Mahmood, learned counsel for the appellants and Sri Sunil Kumar, Advocate for respondent. 2. This is a defendants' appeal. The plaintiff instituted Original Suit No. 27 of 1987 seeking an injunction that defendants-appellants be restrained from interfering or raising construction on the property shown in plaint with boundaries "Cha, Ya, Ra, La, Wa" and also mandatory injunction for removing construction made thereon illegally. 3. The plaintiff set up her claim based on an oral gift (Hibba) dated 14.02.1979 executed by her father, Hazi Mohd. Yusuf and a written acknowledgement thereof made on 13.11.1984. The property in dispute is part of Plot No. 242 and 247. 4. The defendants contested suit disputing the particulars details and boundaries of property in dispute given in plaint. Besides, in additional pleas in para 19 it was pleaded that plaintiff is not the sole owner of house in question but there are other co-owners who have not been impleaded. Thereafter an additional written statement was also filed stating that the property marked with boundary "Cha, Ya, Ra, La, Wa" does not belong to plaintiff and in fact the said property was not owned by Sri Hazi Mohd. Yusuf, hence the question of gift of said property by him does not arise. 5. The Trial Court formulated nine issues and issues No. 3, 4 and 6 are as under: @ Hindi @ "(3) Whether the plaintiff is the owner and occupant of the property in dispute? (4) Whether the defendants by giving forcible possession have maliciously built an uncovered toilet at the land shown as 'Cha', 'Va', 'Ya' and 'Ra' in the plaint, thereby causing pollution, if so, its effect? (5) Whether the heirs of Yusuf Khan being co-owners of the property in dispute are also necessary parties to the suit and whether the suit suffers from their non-joinder?" (English Translation by the Court) 6. In respect to issue no. 6 no evidence brought before courts below to show who else are the co-owners of property in dispute and, therefore, it was decided against defendants. 7. Issue no. 3 and 4 were decided together. In respect to issue no. 6 no evidence brought before courts below to show who else are the co-owners of property in dispute and, therefore, it was decided against defendants. 7. Issue no. 3 and 4 were decided together. The Trial court decided both issues against plaintiff observing that firstly she has not given details, i.e., measurement of disputed property in respect whereof she has prayed for permanent injunction, the alleged gift was also not proved and construction found on disputed land belong to defendants, as shown in Commissioner's report 18-C the defendants were already in possession, therefore, both the issues were decided against her. 8. The Lower Appellate Court, however, has reversed the aforesaid findings on issues No. 3 and 4 by referring to a sale deed of 1960, paper No. 43-C, certified copy whereof was part of record, which shows that said property was purchased by plaintiff's father from one Mohd. Umar in 1960. The Appellate Court also referred to paper No. 42-C which was filed as additional evidence. It has been compared with the boundaries and location disclosed in plaint and gift document showing that on three sides they tally but the position of Sahan was not same. It also referred that in 1960 sale deed when there is no reference of defendants' house in description of boundaries, meaning thereby such house did not exist at that time and must have been constructed later on and that is why defendants' house find mention in Commissioner's report. It also found that Amin's report showing position of disputed premises tally with what has been stated in plaint. The Lower Appellate Court also observed, in my view rightly, that the Trial Court by observing that gift was not proved has erred in law since the gift claimed by plaintiff was not disputed or challenged in written statement, therefore, question of its prove does not arise. The Lower Appellate Court also discussed and considered the sale deed dated 03.02.1971 relied by defendants for the purpose of showing the boundaries of disputed area but it has observed that boundaries which do not find mention in sale deed of 1960 those constructions and building etc. must have come into existence subsequently and also that sale deed of 1971 is in respect to land/property other than dispute one. must have come into existence subsequently and also that sale deed of 1971 is in respect to land/property other than dispute one. In para 18 of the Lower Appellate Court said: @ Hindi @ "As far as the aforesaid sale deed is concerned, it is related to land other than the disputed one" (English Translation by the Court) 9. Therefore, considering the entire evidence on record the Lower Appellate Court has reversed findings of Trial Court and after discussing same the issues No. 3 and 4 have been decided in favour of plaintiff, as a result thereof the appeal has been allowed, judgment of Trial Court has been reversed and suit has been decreed. 10. Learned counsel for the appellants submitted that there was no proper identification of land in dispute but from the discussion made in Lower Appellate Court's judgment I do not find any discrepancy or lack of clarity in ascertaining the disputed land as claimed. It is also not the case that alleged sale deed of 1971 relied on by defendants-appellants has not been discussed by Lower Appellate Court. In fact the entire appeal has been decided by Lower Appellate Court by recording findings of facts based on evidence and in absence of anything to demonstrate that those findings are perverse or that Lower Appellate Court has considered any inadmissible evidence or has ignored any relevant and admissible evidence in recording the findings against appellants, I do not find any occasion to interfere in this matter. 11. Learned counsel for the appellants placed reliance on Apex Court's decision in Nahar Singh Vs. Harnak Singh, 1996(6) SCC 699 wherein the Apex Court said that if agreement to sale is vague and property in dispute is not identifiable, no decree can be granted. The proposition of law laid down therein is unexceptionable but I do not find any application thereof to the case in hand. 12. In my view, no substantial question of law has arisen in this matter so as to warrant any interference. Dismissed. ____________