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2015 DIGILAW 2719 (ALL)

Sheo Murat Rai v. Sita Ram Rai

2015-09-02

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. 1. This second appeal has been filed by the defendant-appellant, challenging the judgment and decree dated 28.3.1980, passed by lower appellate court, as well as judgment and decree dated 22.12.1979, passed by the trial court. Plaintiff-respondent's suit for permanent and mandatory injunction and for possession has been decreed in its entirety by the lower appellate court. 2. Perusal of the records goes to show that original suit no.131 of 1971 was filed by the plaintiff-respondent with the allegation that the suit property originally belonged to late Beni Rai and after his death, plaintiff-respondent became owner and came in possession over the suit property, on the basis of inheritance. It was also stated that plaintiff-respondent has continued to remain in possession over the suit property and the same is liable to have been settled in his favour by virtue of section 9 of the U.P.Z.A. & L.R. Act. Various other averments with regard to planting of tree etc. were made. It was stated that defendant-appellant without any authority raised construction of chabutara and also started raising further constructions like naabdan etc., which has given a cause for filing of suit. 3. The suit was contested by the defendant-appellant by stating that plaintiff-respondent has no right over the suit property nor he is in possession over it. It was also stated that plaintiff-respondent is not related to late Beni Rai in any manner. It was further stated that house of the defendant-appellant situates upon plot no.17 and the entire constructions, which are being alleged to have been raised recently, are all old existing constructions. Further plea of section 9 of the Act was also setup in defence by the defendant-appellant on the ground that suit property is an appurtenant land and would stand settled in them by statutory scheme. 4. Plaintiff-respondent adduced oral and documentary evidence, whereas defendant-appellant adduced only oral evidence, in support of their claim. Trial court considered the documentary evidence brought on record by the plaintiff-respondent, including judgment passed by the civil court in original suit nos.701/17 and 329/26 and came to the conclusion that the suit property originally belonged to late Beni Rai. A further finding of possession in favour of plaintiff-respondent was recorded in favour of plaintiff-respondent being heir of Beni Rai. Trial court considered the documentary evidence brought on record by the plaintiff-respondent, including judgment passed by the civil court in original suit nos.701/17 and 329/26 and came to the conclusion that the suit property originally belonged to late Beni Rai. A further finding of possession in favour of plaintiff-respondent was recorded in favour of plaintiff-respondent being heir of Beni Rai. The trial court accordingly decreed the suit in part to the extent constructions were found to have been raised recently, but in respect of flowing of dirty water through naabdan and removal of construction existing upon plot no.17, the relief was denied, in view of th finding that defendant-appellant had his existing constructions since long. 5. Two appeals were filed by the parties before the lower appellate court. Appeal No.75 of 1980 was filed by defendant-appellant and another appeal no.87 of 1980 was filed by plaintiff-respondent to the extent the relief was denied in his favour. The lower appellate court, after considering all the materials available on record, has returned a categorical finding that the plaintiff-respondent has not been able to prove that he is the heir of late Beni Rai. However, the claim of plaintiff-respondent based on possession has been accepted by the lower appellate court and the suit has been decreed in its entirety. 6. Aggrieved by the judgment and decree of the lower appellate court, defendant-appellant has filed the present appeal. The appeal has been admitted on substantial questions enumerated in clause 2, 3 & 4 of the memo of appeal, which are as under: - "2. Because the plaintiff respondent having come to court on the definite allegations that the land in dispute belonged to one Beni Rai and the respondent got it by inheritance from his and on the finding of the lower court that the plaintiff has failed to prove his connection with Beni Rai, the suit should have been dismissed and the lower appellate court has wrongly and illegally decreed it on making out a new case never pleaded by the plaintiff respondent especially so when the trial court had decreed the suit on a finding that plaintiff was heir of Beni Rai. 3. 3. Because the land as mentioned under section 9 of the U.P.Z.A. and L.R. Act alone has been settled with the tenure holder and none else and there is ano other way of acquiring title to the land within Abadi and the land which is far away from the plaintiff's house as in the present case, separated by several other houses intervening cannot be appurtenant to the plaintiff's house and in ignoring this aspect of the matter as also the view settled by the Hon'ble Supreme Court of India, the lower appellate court has committed patent error of law its judgment is liable to be set aside. 4. Because the plaintiff respondent never rested his claim on mere possession." 7. Learned counsel appearing for the defendant-appellants submtis that once it was held that plaintiff-respondent is not heir of late Beni Rai, who admittedly was the owner of the suit property, any claim based on possession on the basis of inheritance could not have been allowed by the lower appellate court and the finding of the lower appellate court is wholly self contradictory, in this regard. Learned counsel has invited the attention of the Court to the plaint map, according to which, it is apparent that the house of plaintiff-respondent situates at a distance from the suit property, whereas the property situates just in front of house of defendant-appellant, and therefore, the benefit of section 9 could not have been given to the plaintiff-respondent. It is also submitted that no claim of independent possession has been setup by the plaintiff-respondent, and therefore, the lower appellate court has carved out a new case in travelling beyond the case of parties. Reliance has been placed upon a decision of the Hon'ble Supreme Court in the case of Sheodhari Rai and others v. Suraj Prasad Singh and others: 1954 AIR (SC) 758 in order to contend that where a plea of adverse possession had not been setup in the plaint, such a claim could not have been made out by the courts below. Reliance has also been placed upon another judgment of the Hon'ble Supreme Court in the case of State Bank of India v. S.N. Goyal: AIR 2008 (SC) 2594 , para 13 & 14 thereof has been relied upon for the same purpose. Reliance has also been placed upon another judgment of the Hon'ble Supreme Court in the case of State Bank of India v. S.N. Goyal: AIR 2008 (SC) 2594 , para 13 & 14 thereof has been relied upon for the same purpose. Lastly, reliance has been placed upon the judgment of the Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal: 2009 AWC (1) 706 in order to contend that if a new case has been carved out before the lower appellate court, then the High Court in exercise of its power under section 100 would be justified in interfering with such a decree. Para 17 of the said judgment has also been relied, wherein it has been held that in the absence of pleadings, a suit for title could not be converted into a suit for enforcement of an easementary right and the second appeal was held to be rightly allowed. 8. Learned counsel appearing for the plaintiff-respondent, on the other hand, submits that a finding with regard to independent possession of the plaintiff-respondent over the suit property has been returned by the lower appellate court. This finding is based upon evidence and materials available on record and such finding on factual aspect is not open to be interfered with in second appeal. Reliance has been placed upon a decision of the Hon'ble Supreme Court in the case of M. Kallappa Setty v. M.V. Lakshminarayana Rao: (1973) 2 SCC 358 in order to contend that it is always open for a party to resist his possession from a person, who has no better right then himself in the suit property. 9. Having considered the submissions advanced by learned counsel for the parties, this Court finds that the trial court had decreed plaintiff-respondent's suit in part, after returning a finding that the suit property belongs to late Beni Rai and that plaintiff-respondent is the heir of Beni Rai. A further finding with regard to possession was also returned, based upon inheritance, whereby plaintiff-respondent was held entitled to remain in possession over the suit property belonging to late Beni Ram. However, in appeal, the lower appellate court has reversed the essential finding of the trial court that plaintiff-respondent is the heir of late Beni Rai. A further finding with regard to possession was also returned, based upon inheritance, whereby plaintiff-respondent was held entitled to remain in possession over the suit property belonging to late Beni Ram. However, in appeal, the lower appellate court has reversed the essential finding of the trial court that plaintiff-respondent is the heir of late Beni Rai. From the judgment of the lower appellate court, which has been examined in its entirety by this Court, it does not appear that the lower appellate court has independently examined claim of plaintiff-respondent, based upon possession only. The finding of possession in favour of plaintiff-respondent by the lower appellate is without consideration of oral and documentary evidence, led by the parties on the issue of possession. Once the lower appellate court found that the claim of plaintiff-respondent on the basis of being heir of Beni Rai could not be sustained, then it was incumbent upon the lower appellate court to have assessed the claim of the parties based solely on the strength of possession and then only a finding could be returned that plaintiff-respondent is in independent possession of the suit property. Admittedly, no such examination has been done by the lower appellate court. 10. This Court further finds from perusal of the plaint map itself, that it is undisputed to the parties that the suit property situates at a distance from the house of plaintiff-respondent. A claim has also been setup by the parties on the strength of section 9 of the U.P.Z.A. & L.R. Act, which provides that the land appurtenant is to be settled with the person, who has existed construction upon the land on the date of vesting. The lower appellate court, while examining the claim of plaintiff-respondent, based solely on the strength of possession, was required to examine the plea in the context of section 9 of the Act as was pleaded specifically by the parties. Similarly, the claim of defendant-appellant setup on the basis of section 9 of the Act was required to have been adjudicated. In the opinion of this Court, the lower appellate court has failed to adjudicate the questions, which were brought before it, once a finding has been returned that the plaintiff-respondent was not the heir of late Beni Rai. Similarly, the claim of defendant-appellant setup on the basis of section 9 of the Act was required to have been adjudicated. In the opinion of this Court, the lower appellate court has failed to adjudicate the questions, which were brought before it, once a finding has been returned that the plaintiff-respondent was not the heir of late Beni Rai. Perusal of the plaint also goes to show that the suit was essentially filed by plaintiff-respondent on the strength of title claiming through late Beni Rai and was in continuous possession over the suit property eversince. 11. In view of the aforesaid discussions, this Court comes to a conclusion that the lower appellate court completely misdirected in decreeing plaintiff-respondent's suit in its entirety, without specifically dealing with plea of independent possession setup by either of the parties and has further erred in not considering the claim of the parties based upon provisions of section 9 of the Act. The trial stood vitiated on this count. In such circumstances, this Court finds that the judgment and decree of the lower appellate cannot be sustained and is liable to be set aside. 12. The appeal, therefore, succeeds and is allowed. The judgment and decree of the lower appellate court dated 28.3.1980 is set aside and the matter is remitted to the lower appellate court for a fresh consideration of the claim of plaintiff-respondent, based entirely upon possession over the suit property, as well as grant of benefit of section 9 of the Act. The lower appellate court shall also examine the case pleaded by defendant-appellant of his independent possession and grant of benefit of section 9 of the Act. Since there is no appeal filed by plaintiff-respondent against the judgment and decree of the lower appellate court, therefore, the finding that plaintiff-respondent is not heir of late Beni Rai is affirmed. Since parties have been litigating for a period of almost 40 years, it would be appropriate to request the lower appellate court to proceed with disposal of appeal on priority by fixing short dates without granting unnecessary adjournment to either of the parties. The records of courts below shall be remitted forthwith.