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2015 DIGILAW 193 (ALL)

BHABHUTI @ CHIRAGAN v. BASANT LAL

2015-01-30

ARVIND KUMAR MISHRA I

body2015
JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—Heard learned counsel for the parties and perused the record as available on the file. 2. The instant second appeal has been filed by the defendant-appellants against the judgment and decree dated 2.7.1979 passed by I-Additional District Judge, Jaunpur, in Civil Appeal No. 141 of 1976 whereby the lower appellate Court allowed the appeal setting aside the judgment and decree dated 23.2.1976 passed by the trial Court in Suit No. 219 of 1974 and decreed the suit. 3. The facts of this appeal, as emanate from perusal of the record appears to be, that the plaintiffs Basant Lal, Madan Lal and Subas Chandra sons of Gaya Prasad instituted the suit for permanent prohibitory injunction restraining the defendants Babhuti @ Chiragan, Rang Nath, Omkar Nath and Babul Nath from interfering in the peaceful use and possession of the disputed Abadi land shown and marked by letters “A, B, C and D’ at the foot of the plaint map, situate at Mauja (Village) Sumeri, Pargana Gopalapur, District Jaunpur. As per plaint version, there was house and Sahan of one Guru Prasad on the disputed land which was long from north south and broad from east west having Sahan towards east. After demise of Guru Prasad, his property was inherited by his successor Beni Madho, Govind Madho and Shyam Madho and they became owner in possession of the entire property. The said house (of Guru Prasad) was very old, therefore, it gradually fell prior to 3-4 years and was converted into Khandhar (dilapidated) but Beni Madho and others were owner in possession of the said Khandhar (dilapidated) and Abadi land. Beni Madho and others executed a registered sale-deed in favour of the plaintiffs on 12.4.1973 for a sum of Rs. 400/- and handed over the possession of the said Khandhar (dilapidated) and Abadi land to the plaintiffs. 4. By virtue of the aforesaid sale-deed (dated 12.4.1973), the plaintiffs claimed themselves to be the owner in possession of the aforesaid disputed property. The plaintiffs claimed that they are using the disputed land placing Charni for tethering cattle; though the plaintiffs intended to purchase the disputed land for construction of shop. 4. By virtue of the aforesaid sale-deed (dated 12.4.1973), the plaintiffs claimed themselves to be the owner in possession of the aforesaid disputed property. The plaintiffs claimed that they are using the disputed land placing Charni for tethering cattle; though the plaintiffs intended to purchase the disputed land for construction of shop. The plaintiffs alleged that the defendants have no concern or right on the aforesaid disputed land and they were never in possession of the same, but enmity took place between the plaintiffs and the defendants, due to which the defendants threatened to interfere in the disputed property and tried to raise construction thereon, therefore, need to file the suit arose. 5. The averments made in plaint were denied by the defendants by filing the written statement, Paper No. 20-Ka whereby they claimed themselves to be owners in possession of the disputed land for over 12 years. 6. As per the written statement, there was old ‘Bardaur’ (place for keeping animals like bulls, oxen and cows) north south long having opening towards east on the disputed land upon which the defendants and their ancestors were tethering their cattle and were using the same as Abadi land as well as land for cultivatory purpose. The defendants have also annexed the site plan to their written statement wherein they have shown the house, Dalan, well, hand pump etc. and have marked the disputed land by letters “Aa, Ba, Sa and Da”. The defendants have specifically denied any house of Guru Prasad on the disputed land and have claimed that Guru Prasad, Thakur Prasad and their family members had their house at a distance of 200 feet towards east of the defendants’s house and Abadi land. The defendants asserted that Guru Prasad and Thakur Prasad were Zamindar of the locality and they had their house and Abadi land in one Ahata lying to the east of the defendants’ house. 7. The defendants claimed that the plaintiffs have their house and shop towards south of the existing road and the disputed land lies towards north (of the road), whereas, the defendants have their house, Dalan, ‘Bardwan’ and other ‘Sahan’, Abadi land, Charni, pumping set etc. towards north of the road adjacent to the disputed land. 7. The defendants claimed that the plaintiffs have their house and shop towards south of the existing road and the disputed land lies towards north (of the road), whereas, the defendants have their house, Dalan, ‘Bardwan’ and other ‘Sahan’, Abadi land, Charni, pumping set etc. towards north of the road adjacent to the disputed land. The defendants branded plaintiffs as notorious persons as they were cutting Patta (Belt) of the pumping set of the defendants in March, 1973 whereupon the First Information Report against the plaintiffs was lodged at the concerned police station under Section 379 I.P.C. 8. The defendants further claimed that the plaintiffs obtained a forged sale-deed in collusion with Beni Madho and others as such no legal right is created in their favour. The plaintiffs did not obtain any possession on the basis of this sale-deed. The plaintiffs don’t possess agricultural land or cattle. The defendants are reputed tenants. The disputed land belonged to the defendants. The plaintiffs are never in possession of the disputed land for over 12 years, hence the suit is barred by Section 115 of the Indian Evidence Act, Section 38 and 41 of the Specific Relief Act, besides being barred by limitation, the suit is liable to be dismissed. 9. The plaintiffs filed rejoinder Paper No. 21 Ka whereby claim of the defendants was specifically denied that they are in use and possession of the disputed land for over 12 years. They also denied the claim of defendants that the aforesaid sale-deed dated (12.4.1973) in question is outcome of any collusion between the vendor and the vendee. The land marked by letters “ Aa, Ba, Sa and Da” in the map, annexed to the written statement, is not the land under use and possession of the defendants. It is wrong to state that the disputed land did not belong to one Guru Prasad. The plaintiffs have been in use and possession of the disputed land and any averment made contrary to it is absolutely false. 10. On the basis of the aforesaid pleadings, the following issues were framed by the trial Court for adjudication of the matter. (1) Whether the plaintiffs are owner in possession of the land in suit? (2) Whether the suit is barred by Sections 38 and 41 of the Specific Relief Act? (3) Whether the suit is barred by Section 115 of the Indian Evidence Act? (1) Whether the plaintiffs are owner in possession of the land in suit? (2) Whether the suit is barred by Sections 38 and 41 of the Specific Relief Act? (3) Whether the suit is barred by Section 115 of the Indian Evidence Act? (4) Whether the suit is properly valued and Court fee paid is sufficient? (5) Is the suit within time? (6) To what relief, if any, are the plaintiffs entitled to? 11. The plaintiffs on their side got examined Gauri Shankar Singh PW-1 and Basant Lal PW-2 besides placing on record certain documents. Similarly, the defendants got examined Bhabhuti DW-1 and Shyam Lal DW-2. The defendants also placed on record certain papers which have been detailed by the learned trial Court in its judgment. 12. The trial Court, after recording the finding on the aforesaid issues and after perusing the record, dismissed the suit of the plaintiffs with costs and observed that the plaintiffs are not the owner in possession of the disputed land as claimed by them. This judgment and decree is dated 23.2.1976. 13. Feeling aggrieved by the aforesaid judgment and decree dated 23.2.1976, a Civil Appeal No. 141 of 1976 was preferred before the learned District Judge, Jaunpur which, in turn, was heard and disposed of by I-Additional District Judge, Jaunpur, who after considering the merit of the case allowed the appeal and, decreed the suit, thus allowing the prayer made in the suit by the plaintiff-appellants vide judgment and decree dated 2.7.1979. 14. Feeling aggrieved by the aforesaid judgment and decree of the lower appellate Court (dated 2.7.1979), the present defendant-appellants have filed the instant second appeal. 15. The following grounds have been urged in support of this appeal : That the lower appellate Court granted injunction illegally and without reversing the findings of the trial Court. The lower appellate Court overlooked the fact that the trial Court has recorded the finding regarding adverse possession of defendant-appellants over the disputed land and wrongly reversed this finding. The suit was barred by limitation. The lower appellate Court wrongly reversed this finding of the trial Court. Similarly, the suit was barred by Section 115 of the Indian Evidence Act but the lower appellate Court wrongly reversed the aforesaid finding of the trial Court. The disputed land was not identifiable and the lower appellate Court has not given any finding contrary to it. The lower appellate Court wrongly reversed this finding of the trial Court. Similarly, the suit was barred by Section 115 of the Indian Evidence Act but the lower appellate Court wrongly reversed the aforesaid finding of the trial Court. The disputed land was not identifiable and the lower appellate Court has not given any finding contrary to it. The judgment of the lower appellate Court is no judgment in the eyes of law as the points pressed before it on various issues have not been considered by it. The judgment of the lower appellate Court is cryptic and incongruous. 16. At the time of admission and during the course of hearing of this appeal, the following substantial questions of law raised are worth consideration : (1) Whether the lower appellate Court was justified in decreeing the suit for injunction without recording the finding that the plaintiffs were in possession? (2) Whether the lower appellate Court should have decided the plea of limitation as the defendants claimed to have been in possession for more than twelve years? (3) Whether, the finding recorded on issue No. 1 by the learned trial Court that plaintiffs are not the owner in possession of the disputed land by virtue of sale-deed dated 12.4.1973 is sustainable viz-a-viz oral testimony of plaintiff side? (4) Whether, the finding recorded in relation to the possession and ownership of the disputed land in favour of the plaintiffs by the learned lower Appellate Court is sustainable in the eyes of law? (5) Whether, the admission made by the plaintiffs side particularly P.W.1 carries probative force and will get primacy over documentary evidence? (6) Whether, the Commissioner’s report, as was submitted before the learned trial Court was rightly accepted and acted upon by the learned Appellate Court? (7) Whether, Commissioner’s report can be read against the appellants in view of fact that the appellants did not raise specific objection against it before the trial Court? 17. Learned counsel for the defendant-appellants submitted that the lower appellate Court was not justified in acting upon the Commissioner’s report and other irrelevant documents and thus reversing the finding of the trial Court and thereby allowing the relief as sought in the suit. The Commissioner’s report was of much later date than the date when the suit was initially filed in the trial Court. The Commissioner’s report was of much later date than the date when the suit was initially filed in the trial Court. The lower appellate Court did not specifically reverse the finding so recorded by the trial Court particularly on issue No. 1 with regard to ownership and possession of the disputed land. 18. Learned counsel for the defendant-appellants further added that the lower appellate Court wrongly recorded the findings regarding the possession and use of the disputed land in favour of the plaintiff/respondents. The lower appellate Court erroneously overlooked the finding of adverse possession recorded by trial Court in favour of the defendant-appellants. Besides, the lower appellate Court failed to appreciate the finding as recorded by the trial Court regarding the suit being barred by Section 115 of the Indian Evidence Act and Section 38 and 41 of the Specific Relief Act. The lower appellate Court has not given any finding regarding identification of the disputed land. The judgment of the lower appellate Court is on the whole cryptic and incongruous, besides being perverse, erroneous and arbitrary. 19. Learned counsel for the plaintiff-respondents refuted the aforesaid arguments advanced by learned counsel for the defendant-appellants and submitted that the lower appellate Court has taken into consideration all the evidence in its entirety both-oral and documentary-and has justifiably decreed the suit for prohibitory injunction. The vital documents like Exhibit-2 and Exhibit-9 alongwith the Commissioner’s report Paper No. 13-C very much substantiate and establish the claim of the plaintiffs that the property in question was owned and possessed by Guru Prasad and consequently the plaintiffs obtained same rights by way of purchase vide sale-deed Paper No. 10 Ka. The lower appellate Court has taken into consideration one sale-deed dated 16.5.1961 (Exhibit-2) as well as Exhibit-9 (another sale-deed of same date) while recording the finding on the point of possession of the plaintiffs. Except oral testimony, the defendants could not show any worthy and credible evidence to clinch the point to the extent that the aforesaid sale-deed dated 16.5.1961 was never in existence. The aforesaid sale-deed (dated 16.5.1961) was executed by none other than the defendant Bhabhuti himself. 20. Learned counsel for the plaintiff-respondents further submitted that the defendant-appellants have been rightly found guilty of suppressing truth in regard to use and possession of the disputed land by their oral testimony. The aforesaid sale-deed (dated 16.5.1961) was executed by none other than the defendant Bhabhuti himself. 20. Learned counsel for the plaintiff-respondents further submitted that the defendant-appellants have been rightly found guilty of suppressing truth in regard to use and possession of the disputed land by their oral testimony. The Commissioner’s report Paper No. 13-C of the trial Court has become final between the parties and it is relevant and admissible in the present case. The lower appellate Court has considered the entire material on records and it has specifically reversed finding of the trial Court as being against evidence on record and there is no point in alleging that the lower appellate Court has not reversed finding of the trial Court while pronouncing the judgment. The judgment and decree of the lower appellate Court is consistent and based on record and the same needs no interference. 21. Before adverting to the findings recorded by both the Courts below, it would be relevant to take into account the aforesaid substantial questions of law to be answered in this appeal which basically include the entire controversy between the parties. 22. In so far as the point involved in the present controversy is concerned, it relates to the point of ownership and possession of the disputed land as claimed by the plaintiffs in their plaint. To cut short, the relief sought was one primarily confined to permanent prohibitory injunction against the defendants in regard to the disputed land which was marked at the foot of the plaint by letters “ A, B, C and D”. Besides, the plaintiff-respondents also sought the relief of possession in case the Court comes to the finding that the plaintiff-respondents are out of possession of the disputed land. This latter relief was incorporated in the original plaint by way of amendment during trial. 23. In answering to above substantial questions of law, it is observed that issue No. 1 as framed by the trial Court was basically confined to the main controversy in dispute as it was determinative of the fact of the ownership and possession of the disputed land in suit. Relevant to note that both the sides in the suit have made their rival claims for the disputed land. Relevant to note that both the sides in the suit have made their rival claims for the disputed land. The trial Court while analyzing the testimony on record, particularly oral testimony decided issue No. 1 against the plaintiffs and also recorded finding while concluding that the defendants are in adverse possession of the disputed land. Based upon aforesaid conclusion, the trial Court was of the view that the suit in question is hit by the provisions of Section 38 and 41 of the Specific Relief Act and also by Section 115 of the Indian Evidence Act and dismissed the suit with costs.’ 24. The lower appellate Court while appreciating the evidence on record also took note of the relevant and material documents Exhibit-2, the sale-deed dated 16.5.1961 and Exhibit-9 another sale-deed of the same date. In the first sale-deed (Exhibit-2) defendant Bhabhuti was the vendee, whereas, in the second sale-deed (Exhibit-9) he was a margin witness. In the sale-deed (dated 16.5.1961), the vendor was one Maharaji Devi who sold her ‘Kachha’ house to the defendant Bhabhuti. This ‘Kachha’ house was lying to the south of the original house of Bhabhuti. Further, defendant Bhabhuti himself identified Maharaji Devi on the register meant for identification at the time of execution of this sale-deed. The lower appellate Court also took into account one most relevant paper-Exhibit-9 (copy of another sale-deed wherein also the vendor was Maharaji Devi) whereby it is proved that on the same day (16.5.1961), the defendant Bhabhuti was also a witness of this another sale-deed executed by Maharaji Devi. 25. Certainly, any oral testimony denying above facts will not get primacy over these (Exhibit 2 and 9) documentary evidence on record. It is very surprising that the trial Court while appreciating the facts and evidence on record totally overlooked the above vital papers of the case which cumulatively work out the very identity of the disputed land and establish unerringly existence of house of Guru Prasad as alleged by the plaintiffs. In such conspicuous factual aspect, it is obvious that oral testimony of Bhabhuti DW-1 and Shyam Lal DW-2 does not inspire confidence and the same can be termed as one suppressing vital facts of the case, while they denied very existence of Maharaji Devi. In such conspicuous factual aspect, it is obvious that oral testimony of Bhabhuti DW-1 and Shyam Lal DW-2 does not inspire confidence and the same can be termed as one suppressing vital facts of the case, while they denied very existence of Maharaji Devi. On careful analysis and scrutiny of their testimony in regard to factual aspect of the case one will reasonably conclude that it is not worth its credit. 26. The lower appellate Court has rightly taken note of all these aspects and has recorded just finding that existence and ownership of the disputed land is very much proved by the above documentary evidence Exhibit-2 and Exhibit-9. It is obvious that the trial Court completely misread and overlooked the above vital papers and nowhere discussed about the same and merely recorded untenable finding based primarily on oral testimony in regard to existence, ownership and possession of the disputed land which can be easily termed as against weight of evidence on record. 27. On appraisal of surrounding boundary marks east, west, north and south in the sale-deed dated 16.5.1961, the disputed land is very much identified and its existence is proved as per claim of the plaintiffs. Thus, the lower appellate Court was justified in reversing the entire finding on ownership and possession of the disputed land as recorded by the trial Court. In fact, the trial Court overlooked fact that probative force of the above documentary evidence, under the facts and circumstances of the case, carry more weight in regard to fact of existence and ownership of the disputed land, than the oral testimony of the witnesses of both the sides and particularly Bhabhuti DW-1 and Shyam Lal DW-2. In this regard, the observation of the lower appellate Court that documentary evidence carries it own probative force is wholly justified and the same is sustained. No doubt, certain contradictions arise in the testimony of the plaintiff’ witnesses, but these contradictions are found to be of trivial nature and their testimony cannot be thrown away on this count. It is noteworthy that the oral testimony recorded on behalf of the defendants is found to be lacking credibility on account of the fact that their denial of house of Guru Prasad is found to be incorrect version. It is noteworthy that the oral testimony recorded on behalf of the defendants is found to be lacking credibility on account of the fact that their denial of house of Guru Prasad is found to be incorrect version. Plaintiffs’ version and testimony on record as a whole reflect that Beni Madho and others inherited the property of Guru Prasad who, in turn, executed the sale dated dated 12.4.1973, Paper No. 10-Ka on record. Therefore, very denial of house of Guru Prasad on the disputed land and its sale vide sale-deed dated 12.4.1973, by Bhabhuti and Shyam Lal DW-1 and DW-2, respectively, is indicative of suppression of vital facts by these witnesses. 28. No doubt it is evident from Exhibit-2, the sale-deed dated 16.5.1961 that the boundary marks shown in this sale-deed tallies with the map annexed to the written statement (Paper No. 20 Ka on trial Court file) of the defendant-appellants. To be specific, the boundary marks mentioned in the aforesaid sale-deed (Exhibit-2) refer to the existence of Dalan of Guru Prasad on the western side of ‘Kachha’ house (of Maharaji Devi). Not only this, the southern boundary also mentions the house of Bhola Singh. The above reference of the boundary mark, in the sale-deed, in the form of Dalan of Guru Prasad is very much verified from the map annexed to the written statement of the defendant-appellants as well as the Commissioner’s report paper No. 13-C. 29. It is further relevant to mention that the Advocate Commissioner visited the spot on 19.9.1974 and the suit was filed on 18.9.1974, therefore, the contention raised to the extent that the Commissioner’s report is of much later date than the date on which the suit was instituted is wholly misconceived. The Advocate Commissioner, in fact, visited the spot on 19.9.1974 and noted the very surroundings and the disputed land and annexed virtually the same map alongwith his report as has been annexed by the defendant-appellants to their written statement Paper No. 20 Ka. Certainly, mention of ‘Dalan of Guru Prasad’ to the west of ‘Kachha’ house of Maharaji Devi in the above registered sale-deed executed in favour of Bhabhuti is indicative of the existence of the disputed land of Guru Prasad. 30. In so far as the point of adverse possession is concerned, no worthy evidence, apart from oral testimony of the defendants, has been placed on record. 30. In so far as the point of adverse possession is concerned, no worthy evidence, apart from oral testimony of the defendants, has been placed on record. Fact of adverse possession has been specifically denied by the plaintiffs-respondents. Therefore, finding of adverse possession of the defendants as recorded by the trial Court was not justified. In this case, it is discovered that testimony of the plaintiffs’ witnesses though contradictory to a little extent, but these contractions alone in the absence of other supporting material, are not of such magnitude as would negate the effect and outcome of the language of Exhibit-2 and Exhibit-9. As this stage, it can be conveniently observed that in civil suit, it is the preponderance of probability alongwith entirety of evidence which is weighed while adjudicating upon contentious matter. The lower appellate Court while discussing the above aspects of the case has justifiably observed that the trial Court’s judgment is against evidence on record as such the same is not sustainable. I, on careful consideration of the entire testimony on record, am in full agreement with the view of the lower appellate Court and affirm the same in appeal. 31. In so far as the contention of the learned counsel for the defendant-appellants regarding specific non-reversal of the finding of the trial Court on various issues by the lower appellate Court is concerned, this much is observed that the lower appellate Court after discussing the most relevant aspects of the case has reasonably concluded that the findings recorded by the trial Court are not based on evidence on record and this conclusion by itself tantamounts to specific reversal of each finding so recorded by the trial Court against the plaintiff’s, therefore, the contention so raised does not carry force. 32. In the present case, the entire evidence available on record, particularly the documentary evidence heavily leans in favour of the plaintiff’s case. The lower appellate Court has drawn its conclusion only on the material available on record and the same cannot be termed as one-extraneous or perverse. 33. Only this much is to be looked as to whether the lower appellate Court while appreciating the evidence on record has over-shot its domain or not? The lower appellate Court has drawn its conclusion only on the material available on record and the same cannot be termed as one-extraneous or perverse. 33. Only this much is to be looked as to whether the lower appellate Court while appreciating the evidence on record has over-shot its domain or not? In this regard, it may be observed that the judgment and decree of the lower appellate Court is entirely based on evidence available on record and it does not take into consideration any extraneous material. 34. Before parting with the judgment, it would be appropriate to take into account the Commissioner’s report, copy whereof has been annexed with the written argument of the plaintiff-respondents, whereby, it transpires that the Advocate Commissioner identified the disputed land at the instance of the plaintiffs, whereas the defendants boycotted the proceedings although they were present on the spot. The Commissioner’s report alongwith map (Paper No. 13 C) is admissible and relevant between the parties and it carries probative force in so far as the present dispute is concerned. 35. Finding of trial Court on issues such as the suit being hit by the provisions of Section 115 of the Evidence Act, by Section 38 and 41 of the Specific Relief Act was corollary to and outcome of main finding recorded on issue No. 1, which under aforesaid discussion is found to be untenable. 36. All the above substantial questions of law are answered accordingly in terms of discussion made hereinabove. 37. The lower appellate Court rightly termed finding of the trial Court as against evidence on record. Any finding recorded on facts by the trial Court, if found to be against material evidence and the same is perverse, then it can be set-aside by the appellate Court as has been laid down by the Hon’ble Apex Court in the case of Bondar Singh v. Nihal Singh, 2003 (4) SCC 161 : AIR 2003 SC 1905 . 38. If trial Court records finding of fact ignoring relevant and material evidence on record and ignores weight of evidence altogether then the finding so recorded becomes perverse and the same is liable to be set-aside in appeal. This legal aspect finds support from the case of Ajab Singh v. Shital Puri, AIR 1993 All 138 : 1993 All LJ 548. 39. This legal aspect finds support from the case of Ajab Singh v. Shital Puri, AIR 1993 All 138 : 1993 All LJ 548. 39. In view of the above discussions, it is obvious that the judgment and decree dated 2.7.1979 passed by the lower appellate Court is very much justified and the grounds urged in support of this appeal are not sustainable. The findings recorded by the lower appellate Court by its judgment and decree dated 2.7.1979 is hereby sustained and confirmed. 40. The instant second appeal is dismissed with cost. ——————