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2016 DIGILAW 272 (KAR)

SHETTARA BASAPPA v. KHASIM KHAN

2016-03-17

A.V.CHANDRASHEKARA

body2016
JUDGMENT : The present appeal filed under Section 100, CPC is directed against the divergent judgment passed by the first appellate court in R.A. 201/04 which is pending on the file of Fast Track CourtI, Davanagere. 2. The appellants herein were the respondents in the appeal and the respondents herein were the appellants in the said appeal. The first plaintiff-Shettara Basappa and his son-2nd plaintiff-Adiveppa had filed a suit for the following reliefs as found in paragraph 6 of the plaint: a) For a declaration of plaintiffs right title and interest, to the area unauthorizedly occupied by defendants measuring 40’ east to west and 60’ North to South and 2nd defendant in an area measuring East to West 40’ and North to South 50’ fully disclosed in the plaint schedule, which is a part and parcel of 1.06 acres of land granted in favour of 1st plaintiff in Sy.No.108 of Nallur Village, Channagiri Taluk. B) For vacant possession of the same by way of removing the two structures built by the defendants and on defendants failure to do so, at their costs. C) For Court Costs. Wherefore plaintiffs pray for a Judgment and Decree fro the aforesaid reliefs, together with court costs and such other incidental reliefs, which this Hon’ble Court deems fit to grant. Two properties as described in the schedule to the plaint measuring 60 feet x 40 feet and 50 feet x 40 feet respectively are indicated by the letters ABCDEFGH and IJKL and they are stated to be in unlawful possession of defendants 1 and 2. 3. According to the plaintiffs, the properties indicated in ABCDEFGH and IJKL are part and parcel of land granted to the 1st plaintiffShettara Basappa in Survey No.178 of Nallur village, Channagiri Taluk, Davanagere. The two items of properties are stated to be situated on the eastern side of the rice mill put up by him and the space in between the rice mill and the main road. The case of the plaintiffs is that the first plaintiff had applied for grants of land measuring 1.06 acres in Survey No.178, to the authorities with a view to start a rice mill. The same was granted in favour of the first plaintiff in Saguvali Chit No.330196768 and khata was also mutated in his favour. The 2nd plaintiff is stated to have installed a rice mill in the said land. 4. The same was granted in favour of the first plaintiff in Saguvali Chit No.330196768 and khata was also mutated in his favour. The 2nd plaintiff is stated to have installed a rice mill in the said land. 4. Since the land in question was not an agricultural land, the Nallur Panchayat assessed the said building and the premises used for installing the rice mill in the name of the 2nd plaintiff. It is further the case of the plaintiffs that in between the rice mill and DavanagereChannagiri road, open space had been left by them to be utilised for the purpose of running the rice mill and no fence had been put. The said space between the rice mill and the road was vacant till the year 1975-76. Somehow defendants 1 and 2 tried to put up small hutments, leaving a small passage from the main road as entrance to a mill. 5. It is alleged that the plaintiffs resisted and objected for the construction of those hutments by defendants 1 and 2. It is stated that the defendants then produced to grant certificates issued by the Tahsildar of Channagiri, and tried to silence them. According to the plaintiffs, they had become owners of the entire land upto the road margin and therefore the Tahsildar, Channagiri, could not have granted the said lands in favour of the defendants. The Tahsildar had no authority to grant any land to anybody since the entire extent of Survey No.178 had been granted to the 1st plaintiff in the year 1968. In the light of the order passed by the Assistant Commissioner, Shimoga Subdivision, in No.VPC.CR. 104/198485, the plaintiffs had to file a suit for declaration of title and possession. 6. The defendants who are the respondents herein, chose to file written statement denying all material averments. According to them, they had constructed hutments in the open space on the PWD road long back, that is, 28 years prior to the filing of the written statement. It is their case that they had applied to the Tahsildar, Channagiri, for grant of land prior to construction of the hutments. The then Tahsildar, after visiting the spot, chose to grant two sites which were numbered as 629 and 639. Since then the defendants have become owners of the said sites. It is their case that they had applied to the Tahsildar, Channagiri, for grant of land prior to construction of the hutments. The then Tahsildar, after visiting the spot, chose to grant two sites which were numbered as 629 and 639. Since then the defendants have become owners of the said sites. Between these two sites, a vacant space measuring 20 feet is left as access to M/s Panchakshari Rice Mill put up by the plaintiffs. According to them, it is a Government road. According to them the 1st plaintiff had given a statement before the surveyor that the land granted to him had been measured by leaving 75 feet of open space leading to the main road since it had been granted to the defendants. The additional director of land records prepared a sketch depicting the said space, is the averment. The suit is stated to be not maintainable since the Government is not made a party in the light of the Tahsildar granting two sites in favour of defendants 1 and 2 respectively. With these pleadings, they had requested for dismissal of the suit. 7. On the basis of the above pleadings, the trial court framed the following issues: 1) Whether the plaintiff No.2 proves that he has an authority to institute the suit on behalf of plaintiff No.1 also? 2) Whether plaintiffs prove that 1A06 of land was granted to first plaintiff by State Government in Kankaragundi of Nallur Village with the Channagiri Davanagere P.W.D. Road, as the western boundary noted as ‘A.B’ in plaint sketch? 3) Whether plaintiffs prove that, by virtue of the saguvali chit No: 330/6768 they are the owners of Kankaragundi land at Nallur measuring 1A 06Gs, marked as ‘ABCD’ in the plaint sketch? 4) Whether the plaintiffs prove that the plaintiff No.1 came into actual possession of 1A06Gs in Kankagundi at Nallur with its western boundary as, Channagiri.Davanagere P.W.D. road as on the date of issue of Saguvali Chit? 5) Whether the plaintiffs proves that, after grant is made, the land granted in favour of 1st plaintiffs is numbered as S.No.178 of Nallur village? 6) Whether plaintiff prove that out of 1A06gns Sy.No.178 of Nallur owned by the plaintiffs, the defendant No.1 to the extent of 60’X40’ as ‘EFGH’ and defendant No.2 to the extent of 50’X40’ marked ‘IJKL’ in the plaint sketch occupied unauthorisedly prior to the suit? 6) Whether plaintiff prove that out of 1A06gns Sy.No.178 of Nallur owned by the plaintiffs, the defendant No.1 to the extent of 60’X40’ as ‘EFGH’ and defendant No.2 to the extent of 50’X40’ marked ‘IJKL’ in the plaint sketch occupied unauthorisedly prior to the suit? 7) Whether plaintiffs prove that, the defendant No.1 and 2 have constructed the structures in the respective areas unauthorisedly occupied? 8) Whether the defendants prove that, it the western side of the 1A06G in Sy.No.178 of Nallur village granted to plaintiff No.1 there was an open space of 75, touching to the ChannagiriDavanagere PWD road, owned by the State-Government known as Kanakaragundi? 9) Whether defendants 1 and 2 prove that, they are in respective possession of the properties noted in plaint sketch since 28 years? 10) Whether defendant No.1 proves that K.No.629 of Nallur measuring 40’X60’ is granted to him on 12.10.72 by Tahasildar, Channagiri and it is valid? 11) Whether defendant No.2 proves that K.No.629 of Nallur measuring 50’X40’ is granted to him on 15.11.72 and it is valid? 12) Whether valuation of the suit is not proper and as such the court has to no pecuniary jurisdiction to try the suit as alleged in para7 of written statement? 13) Whether defendant prove that, the suit is barred by limitation as state in para2 of written statement? 14) Whether is not maintainable in law as alleged in para6 of written statement? 15) Whether the suit is bad for nonjoiner of party as contended in Additional written statement at para6? 16) Whether the existing structure in the suit schedule property noted as ‘EFGH’ and ‘UJKL’ in the plaint sketch as liable to be removed at the costs of defendants 1 and 2 respectively? 17) Whether the defendants prove that the suit is premature as contended in para7 of Additional written statement? 18) Whether court fee said is insufficient? 19) What Order or decree? The 2nd plaintiff is examined as PW1 and three more in witnesses are examined on his behalf. Defendants 1 and 2 have examined themselves as DWs1 and 2 and one more witness as DW3. 12 exhibits are marked on behalf of the plaintiffs and 38 exhibits are marked on behalf of the defendants. Ultimately suit came to be decreed as prayed for by answering issue nos. 1 to 7 and 16 in the affirmative and issue nos. Defendants 1 and 2 have examined themselves as DWs1 and 2 and one more witness as DW3. 12 exhibits are marked on behalf of the plaintiffs and 38 exhibits are marked on behalf of the defendants. Ultimately suit came to be decreed as prayed for by answering issue nos. 1 to 7 and 16 in the affirmative and issue nos. 8 to 15 and 17 in the negative. 8. The said judgment and decree passed by the learned civil judge (Junior Divn.) was called in question by filing an appeal before the court of Civil Judge (Senior Divn.) in Davanagere, which was withdrawn and transferred to fast track courtI remembered as R.A. No.201/04. The said appeal is allowed, holding that the two sites as described in the schedule appended to the plaint are in lawful possession of the defendants and that they are not part and parcel of the land granted to the 1st plaintiff in Survey No.178, and that interference is absolutely required. Accordingly the appeal is allowed and the judgment and decree passed by the trial court is set aside. It is this divergent judgment and decree which is called in question in this appeal on various grounds as set out in the appeal memo. 9. The appeal is admitted to consider the following substantial questions of law framed on 2.8.2006: 1) Whether the lower appellate court was justified in reversing the judgment and decree of the trial court without meeting the reasoning given by the trial court? 2) Whether the lower appellate court was justified in holding that the suit property is not a part of Survey No.178 measuring 1 acre 20 guntas when the notification was set aside by the competent authority? 10. Heard arguments on both sides. Both the substantial questions of law are interrelated and hence are taken up together for discussion. REASONS 11. Point nos.1 and 2: what is argued before this court by the learned counsel for the appellant is that while up turning a wellconsidered judgment of the trial court, the first appellate court is expected to come to close quarters and assign reasons indicating as to where the trial court has gone wrong and what should have been the proper approach. Principles to this effect have been reiterated by the Hon’ble apex court in the case of SANTHOSH HAZARI .v. PURUSHOTTAM TIWARI ( AIR 2001 SC 965 ). Principles to this effect have been reiterated by the Hon’ble apex court in the case of SANTHOSH HAZARI .v. PURUSHOTTAM TIWARI ( AIR 2001 SC 965 ). It is his argument that the first appellate court has not at all assigned any cogent reasons to upturn the well considered judgment of the trial court and that the entire evidence placed on record is not reassessed on the touchstone of intrinsic probabilities. It is argued that the first appellate court has adopted wrong approach to the real state of affairs and that unnecessary importance has been attached to Ex.C1, report submitted by the supervisor of ADLR, who was appointed by the court as court commissioner at the instance of the first appellant. 12. There is no second opinion about the legal position that whenever the first appellate court intends to upturn the judgment of the trial court, it has to assign valid and cogent reasons indicating where the trial court has gone wrong and what should be the right approach. In fact Ex. P1 is the mutation register showing incorporation of the name of the 1st plaintiff as Khatedar in No. VPR. 330/196768 wherein it is mentioned that that he is the Khatedar in respect of 1.06 acres of land in Survey No.178. Admittedly, Ex.P1 does not disclose identification property with reference to boundaries, though the extent is mentioned. 13. ExP2 is the license stated to have been issued by Nallur village Panchayat permitting the 1st plaintiff to put up a building for installation of an electric rice mill. Ex.P3 is the general licence issued by the Panchayat on 1. 4. 1968. It speaks about electricity connection given to the said rice mill. But this document does not disclose identification of the property with reference to boundaries. Ex.P4 is the house land and tax assessment stated to have been issued by the Panchayat for the year 196667 dated 16. 7. 1986. For the first time, the western boundary is mentioned as PWD road. It is ununderstandable as to how the Panchayat authorities could incorporate boundaries without there being any legal basis and therefore, much significance cannot be attached to it. It is in this view of the matter, the learned it judge of the first appellate court has not attached much importance to Ex.P1 to P4. 14. Ex. It is ununderstandable as to how the Panchayat authorities could incorporate boundaries without there being any legal basis and therefore, much significance cannot be attached to it. It is in this view of the matter, the learned it judge of the first appellate court has not attached much importance to Ex.P1 to P4. 14. Ex. P5 is an Uttara copy of land in Survey No.178 of Nallur village, showing the location of two sites indicated in blue ink and red ink. Between these two sites is a space measuring 20 feet leading from the road to the eastern vacant space. This document itself shows that the space measuring 60 feet x 40 feet and 50 feet and 40 feet indicated in blue and red ink respectively had already been disposed of and in between these two sites, is the access measuring 20 feet to be used as an access from the main road. This document is not helpful to the plaintiffs as it does not bear the date on which it was prepared by the taluk surveyor, nor the date on which it was issued by the concerned. Even otherwise, this clearly depicts the two vacant space and construction put up thereon. 15. If this document marked as Ex.P5 is to be relied, it is seen that the two sites in question were in existence even before the rice mill was put up. Heavy reliance is placed on the carbon copy of sketch to show that the entire extent of land measuring 1.06 acres in Survey No.178 belongs to the plaintiffs. It only speaks about durasthi being them by the land revenue authorities. 16. The first plaintiff intended to put up an electric boiler in the premises to which the defendants objected to the ground that will cause nuisance by way of noise pollution. Therefore the defendant-Khasim Khan had objected to the election of this boiler in the mill premises and hence he had approached the Assistant Commissioner of Shimoga subdivision in No.VPC.CR.104/198485 under the provisions of Section 55 of the Village Panchayat and Local Board Act, 1959. The appeal came to be allowed the order dated 14.10.1985, directing the respondent-Shettara Basappa to obtain license for installing the boiler. This is evident from Ex.P7, order passed by the Deputy Commissioner. The said order was passed almost 10 months prior to the filing of the suit. The appeal came to be allowed the order dated 14.10.1985, directing the respondent-Shettara Basappa to obtain license for installing the boiler. This is evident from Ex.P7, order passed by the Deputy Commissioner. The said order was passed almost 10 months prior to the filing of the suit. This would also indicate that at the time the 1st plaintiff intended as part of the rice mill, defendants had already put up their house and they had a grievance that such election would cause nuisance and hardship to them. Consequent upon the order dated 14.10.1985, passed by Assistant Commissioner, Khasim Khan approached this court in W.P. 18153/85, making Adevappa2nd plaintiff as a party. The challenge was in regard to the granting of licence by the Panchayat. Ultimately this court disposed of the writ petition ruling that if there is any inconvenience or nuisance, the same will have to be established in proper proceedings before the civil or criminal Court for removing the nuisance. This is evident from Ex.P8certified copy of the order dated 25.3.1986. In a way, it also shows existence of houses prior to the erection of the boiler. 17. Ex.P10 is the village map of Nallur village. The location of Survey No.178 is shown to be on the eastern side of the road leading from Davanagere to Nallur. Ex.P11 is the sketch of Survey No.178 prepared by the assistant director of land records, Shimoga Subdivision. The rice mill is shown in red colour with Roman letter I. The house put up by defendants 1 and 2 is shown as Roman letter II. Roman letter III is shown as land measuring 7.2 guntas. It is specifically mentioned therein that Mohamed Hussain and Khasim had put up their houses. It is also mentioned that on 15.11.1972 itself, these two sites had been granted to the defendants vide No. 1747 and 1748/197273. This information is forthcoming from an important document prepared by the Assistant Director of Land Records. If there was no reference of grant of the two sites to the defendants prior to the filing of the suit, the said information would not have been given by the ADLR, an important authority to maintain and preserve land records. 18. This information is forthcoming from an important document prepared by the Assistant Director of Land Records. If there was no reference of grant of the two sites to the defendants prior to the filing of the suit, the said information would not have been given by the ADLR, an important authority to maintain and preserve land records. 18. The first appellate court has specifically held that the two sites were granted in favour of the defendants by the Tahsildar representing the Government and therefore, the Government should have.3 been made a party. There’s a lot of force in the finding of the first appellate court. Both the plaintiffs and defendants have been relying upon the acquisition of title action on the basis of orders passed by the competent authorities of the Government. Such being the case, the Tahsildar who is stated to have granted this two sites in favour of the defendants, was a necessary party and this aspect of the matter was not at all noticed by the trial court. 19. It is to be seen that the plaintiffs have specifically averred in paragraph 3 of the plaint as follows: 3. The first plaintiff applied for grant of land in Kankara Gundi of Nallur village. Chennagiri Taluk with a view to start a rice mill. The land available in the said Kanakara Gundi was 1.06 acres. (Amended as per order dated 12.6.1991(3 items) Sd/18.6.1991) Amended as per orders on I.A.II dt. 12.6.91 sd 18.6.91 Munsiff and JMFC., Channagiri 18.6.91) was granted in favour of the 1st Plaintiff under Saguvali chit No.330/6768 in favour of 1st plaintiff and the khata of the said extent of land was mutated in favour of the 1st plaintiff as per Mutation Register Extract produced herewith, which sets out in detail, the dat of acceptance of change of khata and of his having been granted the land in question. As there was a condition imposed in the said grant certificate made the 1st plaintiff being aged made his son the 2nd plaintiff to apply for installing a rice Mill in the said Area, and the license applied was granted in favour of the 2nd plaintiff and a rice mill actually came up in a portion of the area granted in favour of the 1st plaintiff. As the Rice mill was constructed by the 2nd plaintiff and as it was not an agricultural land the Nallur Panchayat assessed the said building and the premises used for the installing of the Rice Mill, in the name of the 2nd plaintiff as per the panchayat records. While erecting the rice mill the 1st and the 2nd plaintiff left some open space between the Main road running from Channagiri towards Davanagere side, which is on the western side of the area utilized as Mill premises. No fence as such was put up and the area was left open. After the coming up of the Mill and its functioning this open space remained as vacant between Mill premises and the Main road till 1975-76. It is round about the time, defendants 1 and 2 tried to come up with small hutments in the open space left by plaintiffs leaving a small passage from the main road to the Mill premises. The area so utilized by them sometime in 1976 is approximately 40’X60’ by the 1st defendant and 40’X50’ by the 2nd defendant, shown in the sketch accompanying the plaint. The passage kept open to have access to the rice mill premises from the main road is also shown in the sketch and the width being about 20 feet. Plaintiffs resisted and objected for the construction of those hutments by Defendant 1 and 2. But when objected, Defendants 1 and 2 produced two grant certificate issued in their favour by the Tahsildar, Channagiri and tried it silence the plaintiffs. But later on verification, Plaintiffs learnt that the actual extent of land available in Sy.No.178 of Nallur is 1.06 acres and entire extent of that land had been granted in their favour and it extents upto the ChannagiriDavanagere Main Road. This plaintiffs learnt the fact very clearly of their being the owners of the lands upto the road, when defendants 1 and 2 started objecting, when he 2nd plaintiff come up with the idea of putting up of a boiling tank in his premises. Before the Assistant Commissioner, Shimoga, they had obtained an order of stay and had prevented the plaintiffs from installing the Paddy Boiling Tank. Before the Assistant Commissioner, Shimoga, they had obtained an order of stay and had prevented the plaintiffs from installing the Paddy Boiling Tank. At that time, it was learnt that the constructions of hutments by the side of the Road and in front of the Mill premises was an unauthorized one and the grant certificate issued by the Tahsildar was without authority as the Government had no right over a land owned by these plaintiffs to be disbursed off by grant in favour of defendants 1 and 2. The order of the Assistant Commissioner, Shimoga Sub.Division was actually passed in VPC. CR.104/8485. as on his file on 14th October 1985. Hence this suit for a declaration of their right title and interest over the land fully described into plaint schedule and for its vacant possession from defendants 1 & 2. 3. (a). After the grant of land is made, the land granted in favour of first plaintiff is numbered as S.No.178 of Nallur village, (Amended as per order dated 12.6.91 sd/18.6.91) Amended as per order on I.A.II dated 12.6.91 Sd/Munsiff and JMFC., Channagiri 18.6.91). It is not as though the defendants tried to put up the hutments just prior to the filing of the suit. In the year 1975-76, the plaintiffs put up the hutments and now they have become pucca houses. No steps were taken to restrain the defendants from putting up any construction on the two sites at the earliest, but the plaintiffs chose to file a suit for declaration of title only in the year 1986. This long delay would disentitle the plaintiffs to seek the relief of possession and the long silence of delay should be construed as acquiesance. 20. This court in the case of MIRZA SATTAR BEG .v. TAJUDDIN (1964 Mys.L.J. Supp. 879) has held that ‘issuance of a mandatory injunction is discretionary and rests entirely in the discretion of the court. It is not in every case that the plaintiff who complains against an injury caused to his property by the defendant can obtain a decree for mandatory injunction. He should establish that he did not stand by and allow the injury to be caused to him. It is not in every case that the plaintiff who complains against an injury caused to his property by the defendant can obtain a decree for mandatory injunction. He should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury, such as unauthorized construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorized construction was in progress and comes to the court with his suit only after such unauthorized construction was completed, the case would not be one for a mandatory injunction but only for damages.’ This decision is subsequently followed in another decision of this court in the case of SUBHADRABAI ANNAJI .v. SUSHEELABAI & OTHERS (1983 (2) KLJ 377). 21. In pursuance of an application filed in terms of Order XXVI Rule 9, CPC numbered as I.A.6, the supervisor of Assistant Director of Land Records had been appointed as court commissioner by the first appellate court to visit the spot, i.e. Survey No.178 measuring 1.06 acres, and to submit a report about the boundaries and to note the physical features of the land about the existence of any structure and also to locate PWD road and the road margin in between the road and land in Survey No.178, and also to locate plaintiffs houses along with measurements. He was also asked to point out as to whether in between PWD road, there is any land and if so, what are the measurements. 22. On the basis of the said order the commissioner visited the spot and submitted a detailed report on 1.1.1995 which is marked as Ex.C1. In the said report and the connected sketch, it is specifically indicated that 1.06 acres of land in Survey No.178 is shown by the letters ABCDEFGH. The rice mill building is shown as Roman ‘I’. The two houses abutting the road leading from Channagiri to Davanagere are shown as Roman ‘IV’ and ‘V.’ It is specifically mentioned that Khasim Khan has put up a house in the property indicated as Roman ‘IV’ measuring 64 feet eastwest and 110 feet northsouth, and the 2nd defendant has put up a house as indicated in Roman ‘V’. The two houses abutting the road leading from Channagiri to Davanagere are shown as Roman ‘IV’ and ‘V.’ It is specifically mentioned that Khasim Khan has put up a house in the property indicated as Roman ‘IV’ measuring 64 feet eastwest and 110 feet northsouth, and the 2nd defendant has put up a house as indicated in Roman ‘V’. In between these two sites, is space measuring 35 feet being used this access to the rice mill put up in Survey No.178. 23. In the absence of specific boundaries being mentioned in Exs.P1 to P3, the documents on which heavy reliance is placed upon by the plaintiffs, and in the light of the report of the commissioner appointed by the court, the first appellate court is justified in rejecting the reliefs sought for by the plaintiffs. In fact the entire extent of 1.06 acres is with the plaintiffs and the defendants 1 and 2 have put up their houses and backyard in the space which is not a part and parcel of the land granted to the plaintiffs in Survey No.178 measuring 1.06 acres. 24. Normally when land is granted, it would always be shown with reference to the sketch or boundaries. In the absence of the same, it is very difficult to accept that land building Survey No.178 so granted in favour of the deceased 1st plaintiff exists up to the road leading from from Channagiri to Davanagere. If clear boundaries had been mentioned in the grant order indicating Channagiri road as boundary, then there was scope to argue that boundaries prevail over extent. In fact sufficient access measuring 35 feet from Channagiri main road is provided to the rice mill and on either side of the said access are the houses of defendants 1 and 2 who have put up houses long prior to the filing of the suit. They have also relied on the grant made by the Tahsildar in their favour. 25. It appears the whole issue started when the defendants objected to the plaintiffs putting up a boiler in the rice mill in the year 1984. Soon after suffering an adverse order at the hands of the Assistant Commissioner, plaintiffs chose to file the suit. It appears, if the defendants had not objected to the election of the boiler, the plaintiffs would not have filed the suit and they would have kept quiet. Soon after suffering an adverse order at the hands of the Assistant Commissioner, plaintiffs chose to file the suit. It appears, if the defendants had not objected to the election of the boiler, the plaintiffs would not have filed the suit and they would have kept quiet. Therefore the time at which the suit came to be filed on behalf of the plaintiffs will also have to be taken into consideration. It is not as though the residential houses had been put up by the defendants just prior to the filing the suit. They had put up their houses, even according to the plaintiffs, in the year 1975-76. 26. In fact though the first appellate court has not written a lengthy judgment, it has pointed out the important lacunae in the case of the plaintiffs with reference to Government not being made a party and the documents not indicating the boundaries of the land granted. It has also taken into consideration grant of two vacant sites made by the Tahsildar in favour of the defendants. 27. The first appellate court has adopted right approach to the real state of affairs and no illegality or perversity is found in the approach of the first appellate court. In fact the learned judge of the first appellate court has reassessed the entire evidence available on record on the touchstone of broad preponderance of probabilities. Accordingly both the substantial questions of law will have to be answered in the affirmative. 28. In the result, the following order is passed: ORDER The appeal filed under section 100, C.P.C. is dismissed with costs, confirming the judgment dated 13.4.2005 passed by the first appellate court in R.A.201/04.