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2015 DIGILAW 130 (RAJ)

Kallu Khan v. Abdul Jabbar

2015-01-15

NISHA GUPTA

body2015
JUDGMENT : Nisha Gupta, J. This second appeal under Section 100 CPC has been filed against the judgment and decree dated 5.10.95 passed by Additional District Judge, Karauli in Civil Appeal No. 46/92 reversing the judgment and decree dated 3.1.91 passed by A.M.J.M., Karauli in Civil Suit No. 4/89 and dismissing the suit for declaration and permanent injunction. 2. The short facts of the case are that the plaintiff appellant filed a suit for declaration and injunction on the ground that the disputed property is ancestral property of appellant which originally belongs to grand father of appellant Hazi Moledad Khan. There was a kachha house and permanent Kotha in the disputed property which was rented to Kohli community. Defendants are threatening to raise construction, hence the suit has been filed. It has also been prayed that if the defendants are found in possession a decree for possession should also be passed. The defendant respondents have pleaded that they are the owners of the property as their father has purchased the property in 1945 by a writing at the consideration of Rs. 60/- and in the alternative, they are in peaceful possession of the property in knowledge of the appellant and hence their possession became adverse. It has also been pleaded in rejoinder by the appellant that the disputed property was mortgaged to Gulsher Khan in 1945 and this also strengthened the contention of the appellant. The trial court has decreed the suit for declaration as well as injunction whereas the first appellate court has reversed the finding, hence this second appeal. 3. The appeal was admitted on 3.8.2005 on the following substantial questions of law: (1) Whether having pleaded and proved the ownership and possession by the plaintiff in the plaint and the disputed property having been mortgaged with Gulsher Khan as stated in the rejoinder would not sufficient to have pleaded the case of ownership by the plaintiff and a decree for ownership can only be denied to the plaintiff on not making specific pleadings of mortgage in the plaint ? (2) Whether the plaintiff is entitled for possession on the basis of ownership of the disputed property and is required to prove act of possession even the defendants have not proved their possession over the disputed property ? 4. (2) Whether the plaintiff is entitled for possession on the basis of ownership of the disputed property and is required to prove act of possession even the defendants have not proved their possession over the disputed property ? 4. Heard the learned counsel for the parties and perused the impugned judgments and decree so also perused the original record of the case. 5. As regards question No.1, the contention of the respondent was that fact of mortgage with Gulsher Khan never pleaded before the court below, hence this fact could not have been considered by the court below and appellate court was also of the opinion that this fact has not been pleaded that property has been mortgaged with Gulsher Khan. The findings of the appellate court are apparently perverse as in rejoinder, it has been specifically stated that property has been mortgaged with Gulsher Khan and apart from it, Ex.1 mortgage deed has also been submitted. The appellant has rightly contended that fact of mortgaging the property was only a question of evidence which could strengthen the fact of ownership of the appellant and even there was no need to plead it in spite of this, it has been pleaded in rejoinder and findings of the court below are based on non consideration and misreading of the pleadings. Apart from it, the appellant has relied upon Ramratan v. Bulakidas through his LRs, RLR 2000 (2) 760 wherein it has been held that if there is a variance between the pleading and prove, it would not be fatal to the suit if the issue has been framed and parties has put in evidence in respect of the issues. Here in the present case, even before the trial Court, the fact of mortgage has been pleaded. Evidence has been produced by both the parties even Ex.1, deed has been proved and presumption under section 90 of the Evidence Act has been raised rightly by the trial Court as the document was 30 years old and issue No.1 has been decided by the trial Court rightly in favour of appellant that he is the owner of the property and also in possession of the property. The learned trial Court has also considered the fact that defence raised by the respondents are not proved no document has been submitted to show that the property has been purchased by them or they are in peaceful possession of the property. The court below has also considered the fact that when property has been mortgaged vide Ex.1 in 1948, it cannot be held that it was in peaceful possession of the respondent since 1945 and after due consideration of the evidence on record, issue No.1 has been answered in favour of the appellant. 6. The first appellate court has invented a new case that the property belongs to Government and State Government has not been made party and apart from it, the appellate court has not considered the fact that Ex.1 mortgage deed has been submitted and in rejoinder it has been pleaded that it was mortgaged with Gulsher Khan and only on surmises, the considered finding on issue No.1 of the trial court has been disturbed, hence question No.1 is answered in favour of the appellant that the appellant has amply proved the ownership and possession over the property and also the fact that the disputed property has been mortgaged with Gulsher Khan and the pleading has also been made to that effect. Apart from it, pleadings of the parties should have been seen in substance and not only in the form and in view of the law laid down in Ramratan (supra), the contentions of the respondents are not acceptable and issue No.1 is answered in favour of the appellant and decree cannot be denied to the appellant. 7. As regards question No.2, the contention of the respondent is that when the appellant is not in possession of the property, the suit for declaration or injunction should not have been decreed and decree for possession could not be given. The learned trial court has categorically held property in possession of the appellant and plea of adverse possession of the respondent has been rejected. Admittedly, the suit property is open land and when ownership is with the appellant, the possession would also follow and be held in favour of appellant. Even the appellate court has not disturbed the finding that the appellant was not in possession of the property. Admittedly, the suit property is open land and when ownership is with the appellant, the possession would also follow and be held in favour of appellant. Even the appellate court has not disturbed the finding that the appellant was not in possession of the property. No evidence has been submitted by the respondents to show that the appellant ever been dispossessed from the property and trial court has held the possession of the appellant and in view of the findings, only the decree for declaration and injunction has been allowed. Hence in view of the above, the defendants have not proved the possession over the property. The appellant is the owner of the property. The property is an open land, hence the possession goes with the ownership and question No.2 is answered in favour of the appellant. 8. In view of the above, the judgment and decree under appeal passed by the first appellate court is held to be perverse and liable to be set aside. Consequently, the appeal succeeds and is allowed. Judgment and decree under appeal dated 5.10.95 passed by Additional District Judge, Karauli in Civil Appeal No. 46/92 is quashed and set aside. Appeal allowed - Judgment of appellate court reversing that of trial court set aside.