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2017 DIGILAW 1274 (ALL)

OBHAN SINGH v. DHIRI SINGH

2017-05-12

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—This is a defendants’ Second Appeal filed against the judgement and decree dated 11 February 1987 passed in First Appeal No. 29 of 1986 whereby the plaintiff’s first appeal was allowed and the Original Suit No. 409 of 1985 was decreed. 2. The plaintiffs filed Suit No. 409 of 1985 with an allegation that they were owners in possession of plot No. 752/2/6 area 0.30 decimal of village Panwah, District-Mainpuri and that over this plot they had planted their trees and had raised various structures in the form of a Madhai, Naads and Charans and that despite the fact that the defendants had no concern with the disputed property, they were disturbing in their peaceful existence and thus they be injuncted from interfering with the possession of the plaintiffs. 3. The Trial Court dismissed the suit while the First Appellate Court allowed the appeal and injuncted the defendants from interfering with the peaceful possession of the plaintiffs and further directed the defendants to remove their structures/constructions etc. from over the disputed plot which they had raised after the institution of the suit. 4. The counsel for the defendants/appellants has submitted that the First Appellate Court reversed certain findings of fact without giving any cogent reason and that the suit had been decreed without there being any proof of the fact that the plaintiffs were owners in possession over the plot in question and has, relying on order VII Rule 3 of the Code of Civil Procedure, 1908, submitted that where the subject-matter of the suit is an immovable property, the plaint should give a description of the property sufficient enough to identify it. 5. Further, he has submitted that the plot in question which has been numbered as 752/2/6 was, in fact, a part of a very big plot No. 752 measuring almost 18.70 acres and that it had not been made clear as to which portion of the big plot number 752 was in dispute. What is more, they claimed ownership over the disputed property because of certain plots having been granted to them by the Gaon Sabha by way of allotment. 6. In reply, the counsel for the plaintiff-respondent has very vehemently submitted that the plot in question was his ancestral bhumidhari plot and that the defendants had no right over it. What is more, they claimed ownership over the disputed property because of certain plots having been granted to them by the Gaon Sabha by way of allotment. 6. In reply, the counsel for the plaintiff-respondent has very vehemently submitted that the plot in question was his ancestral bhumidhari plot and that the defendants had no right over it. He further submitted that the pattas on the basis of which the defendants claimed their rights could never have been executed in their favour as regarding this very plot there was an adjudication of the Consolidation Officer in case No. 1961/3485 wherein it was held on 22.1.1967, that the plot in question belonged to the father of the plaintiff and that the Gaon Subha had no right over it. The plaintiffs-respondents’ counsel has, therefore, submitted that once when it was held that the Gaon Sabha had no right over the plot in question then the defendant-appellant could never claim any right on the basis of a patta which was allegedly executed by the Gaon Subha. The plaintiffs-respondents have further submitted that a bare perusal of the report 24(ga) submitted by the Advocate Commissioner would make it evident that none of the constructions, which the defendants were claiming to be theirs on the property in question, were in existence on the date when the Commissioner had visited the spot and thus the defendants’ claim that the constructions over the property in question existed from before the filing of the suit holds no water. 7. Further, the counsel for the respondents has submitted that in a second appeal under Section 100 of the C.P.C. only substantial questions of law had to be looked into and that findings of fact had not to be interfered with unless they were perverse. 8. In this context, he has cited a decision of the Supreme Court in the case of Syeda Rahimunnisa v. Malan Bi(dead) by legal representatives and another, (2016) 10 SCC 315 and has submitted that findings of fact cannot be reoponed in a second appeal in the absence of any perversity. 9. I have heard learned counsel for the parties and have gone through the record of the case. 10. Primarily, the defendant-appellant has based his argument on the non-compliance of order VII Rule 3 of the Code of Civil Procedure, 1908, which is being reproduced here as under : 3. 9. I have heard learned counsel for the parties and have gone through the record of the case. 10. Primarily, the defendant-appellant has based his argument on the non-compliance of order VII Rule 3 of the Code of Civil Procedure, 1908, which is being reproduced here as under : 3. Where the subject-matter of the suit is immovable property : Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. From a perusal of the judgment of the Court below, it is certain that the plot No. 752/2/6 measuring 0.30 decimal was an identifiable piece of land over which the Consolidation Officer had adjudicated on 22.1.1967 and had held that the father of the plaintiff a was Bhumidhar and that the Gaon Sabha had no concern with it. 11. Under such circumstances, when the plot was definitely identifiable and a competent Court of exclusive jurisdiction had adjudicated that the plot in question belonged to the father of the plaintiffs, no confusion about identification of the plot remained. The defendant-appellant has also not denied that the disputed plot was numbered as No. 752/2/6. In the case of Zarif Ahmad(D) Through Lrs. and another v. Mohd. Farooq, (2015) AIR SC 1236, the Supreme Court has held that the description of the property must be sufficient to identify the same and that the property could be identified either by its boundaries or by its number in a public record of settlement or survey. This is what order VII Rule 3 of the Code of Civil Procedure also stipulates. 12. I, therefore, hold that the findings of fact given by the First Appellate Court that the plot in the question was identifiable, it was in the ownership of the plaintiffs and that the defendants had made their constructions after the suit was instituted cannot be interfered with and that the Second Appeal, being concluded by findings of fact, has to be dismissed. The appeal is, therefore, dismissed.