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2015 DIGILAW 241 (RAJ)

Srilal v. Sohan Lal

2015-01-27

NISHA GUPTA

body2015
Hon'ble GUPTA, J.—This second appeal under Section 100 CPC has been filed against the judgment and decree dated 11.11.94 passed by Additional District Judge No.1, Bharatpur in Civil Regular Appeal No. 21/82 (17/93) confirming the judgment and decree dated 18.10.82 passed by Munsiff, Kama in Civil Suit No. 8/80 whereby the trial court has decreed the suit of plaintiff respondent. 2. The short facts of the case are that plaintiff respondent filed a suit for recovery of possession of the suit property with the contention that the appellant was the original resident of Tara Nagar. 5-6 years back, he came to village Sonokhar and started living there. Thereafter plaintiff respondent allowed the defendant to run a flour mill in the suit premises and appellant also started living there. On 1.9.74 when he was asked to vacate the suit premises, he disputed title of the plaintiff respondent, hence suit for recovery of possession has been filed. The appellant has denied the title of the plaintiff respondent and his averment in the written statement was that he is living in the suit premises in his own rights and patta has been issued in his favour by Panchayat Samiti, Sonokhar. The learned trial Court has decreed the suit in favour of respondent and appeal has also been dismissed, hence this second appeal. 3. On 23.12.94, the appeal has been admitted on the following substantial question of law: “Whether the plaintiff's suit for declaration could have been decreed in absence of any pleading regarding his title ? 4. The contention of the appellant as regards the substantial question is that the basis of the suit by the plaintiff respondent was his title but there is no evidence on record to show even prima facie the title of the plaintiff respondent. Even it has not been pleaded that plaintiff respondent is the owner of the premises or title vests in the plaintiff respondent. The courts below have committed serious error in ignoring the documents submitted by the appellant specially the patta issued in his favour. The documents submitted by the plaintiff respondent could not prove his title in spite of this, suit has been decreed, hence the court below has committed serious illegality. The plaintiff respondent should have bring a declaratory suit for declaration of his rights and the suit is not maintainable in the form it has been submitted. The documents submitted by the plaintiff respondent could not prove his title in spite of this, suit has been decreed, hence the court below has committed serious illegality. The plaintiff respondent should have bring a declaratory suit for declaration of his rights and the suit is not maintainable in the form it has been submitted. Per contra, the contention of the respondent is that there is no infirmity in the judgments and decree under appeal and looking to the concurrent findings of fact recorded by both the courts below, this Court should be slow in interfering the decree passed in favour of respondent. 5. Heard the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case. 6. It is true that in suit, it has not been pleaded by the plaintiff respondent that he is having title over the suit property, the suit has been drafted tactfully and only it has been stated that property belongs to the plaintiff respondent and defendant is licensee therein but what is the basis of the plaintiff -respondent's case has not been pleaded. Even in the statements of plaintiff he has categorically admits that there is no document to show his title. It has been submitted that property is their ancestral property and Ex.2, partition deed has been submitted to show that the property has been partitioned between the father of plaintiff respondent and their other brothers but clearly partition deeds could be acted upon or relied upon only when there is any antecedents title over the property. Here in the present case, the plaintiff respondent has not submitted any oral and documentary evidence to show that he has any title over the property and it has not been pleaded also. Hence there is inherent defects in the findings of the courts below. The courts below on conjectures and surmises has assumed that the plaintiff respondent is the owner of the property. Ex.1 permission for construction has also been relied by the courts below which does not even speak about the identify of the land and nothing has been shown that how Ex.1 relates to the suit property. The counsel for the appellant has rightly pointed out that Ex. Ex.1 permission for construction has also been relied by the courts below which does not even speak about the identify of the land and nothing has been shown that how Ex.1 relates to the suit property. The counsel for the appellant has rightly pointed out that Ex. 2, 3 and 4 are the documents on plain papers which can be prepared at any time and genuineness of the three are under dispute. The respondent has not submitted any document to show his ownership. The suit property has been designated as ancestral property but no revenue record has been submitted to strengthen the contention. It has been submitted that he is in possession over the property but suit has not been decreed on possessory title. Ex.3 and 4 rent deeds have no relevance as regards the title of the property. 7. The counsel for the respondent has submitted that looking to the concurrent findings of both the courts below, this Court should be reluctant to interfere in second appeal. There could be force in the arguments but here in the present case, the courts below has totally misread the evidence. In civil matters, the court will judge the preponderance of probabilities of both the parties. Here in the present case, in favour of appellant patta Ex.A/1 and A/2 has been issued by the Gram Panchayat. It has been contended on behalf of the respondent that Gram Panchayat was not competent to issue patta but no such averment has been raised before any of the court below and apart from it, it is an admitted fact on behalf of plaintiff respondent that he has raised objections by way of appeal against issuing of patta Ex. It has been contended on behalf of the respondent that Gram Panchayat was not competent to issue patta but no such averment has been raised before any of the court below and apart from it, it is an admitted fact on behalf of plaintiff respondent that he has raised objections by way of appeal against issuing of patta Ex. A/1 and A/2 which has been dismissed, meaning thereby that patta issued in favour of appellant has become final and in the light of the above, the suit which has been filed only in the nature of recovery of possession is not maintainable as no declaration has been sought by the plaintiff respondent as regards to his title and even the plaintiff respondent has not sought for the relief of cancellation of patta Ex.A/1 and A/2 issued in favour of the appellant and when patta has been issued by a competent authority in favour of the appellant and they are also in possession of the property, courts below has seriously erred in deciding issue No.1 in favour of plaintiff. In absence of pleadings, as regards the title of the property and furthermore, there is no evidence to show that the plaintiff is the owner of the property, the counsel for the appellant has also rightly pointed out that in absence of pleading, even evidence should not be looked into submitted to prove the title over the property, the courts below ought to have decided issue No.1 in favour of appellant and courts below has not rightly read the evidence of patta Ex. A/1 and A/2 issued in favour of appellant. In the light of the above, the substantial question is answered in favour of appellant and consequently, the appeal succeeds and is allowed. The judgments and decree under appeal dated 11.11.94 passed by Additional District Judge No.1, Bharatpur in Civil Regular Appeal No. 21/82 (17/93) confirming the judgment and decree dated 18.10.82 passed by Munsiff, Kama in Civil Suit No. 8/80 whereby the trial court has decreed the suit of plaintiff respondent are quashed and set aside.