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2017 DIGILAW 1656 (ALL)

MOHD. HANIF v. SYED KHAN

2017-07-17

SIDDHARTHA VARMA

body2017
JUDGMENT Hon’ble Siddhartha Varma, J.—This is a defendant’s second appeal filed against the judgment and decree passed in Civil Appeal No. 198 of 1986 (Sayed Khan and others v. Mohammad Hanif Khan) dated 20.3.1990. 2. The plaintiffs filed a suit being Original Suit No. 47 of 1977 with a prayer for eviction of the defendant from the disputed land and for arrears of rent amounting to Rs. 600/- alongwith Rs. 80/- as damages. The further relief for mandatory injunction for the removal of certain illegal constructions as had been erected by the defendant over the disputed land was also there. Permanent injunction was also prayed for to restrain the defendants from making any further constructions. The suit was dismissed. However, the First Appellate Court allowed the appeal and decreed the suit. 3. The plaintiffs-respondents had come up with a case that the disputed property was situate in Kasba Bhula Shahari, Pargana Mohammadabad, District Ghazipur and was numbered as plot No. 107/2 having an area of 2 Biswas and 4 Dhurs. The property, as per the plaint case, belonged to the father of the plaintiffs, Tayyab Khan who was the owner in possession of the suit property. The further averment was that 20 years prior to the filing of the suit, the plaintiffs alongwith their father had erected a verandah and a room to the west of the disputed property and the remaining land in the east of the built up portion was kept vacant for their use as sehan and land appurtenant. The further allegation was that 15 years prior to the institution of the suit, the father of the plaintiffs, Tayyab Khan died and thereafter, the plaintiffs became bhoomidhars of plot No. 107/2. As per the plaint allegations, the defendant had requested the plaintiffs for letting out the room at the rate of Rs. 20/- per month for running a shop and ever since then the defendants had been continuing in possession and had been paying regular rent. However, the plaintiffs alleged that when they had gone out of their home town in connection with their jobs then the defendant had inducted an outsider by the name of Panna and the defendant further had opened a door on the eastern side of the room and had begun to use the vacant land by putting his Nad and Chhappar etc. The further allegation was that upon having found the illegal entry of the defendant over the land in question and the concomitant mutation in revenue records plaintiffs sent a registered notice to the defendant for eviction and for arrears of rent. The defendant denied his status of a1-13 tenant and in his reply, stated that in fact, the defendant was the owner of the property in question. This necessitated the filing of the suit. The written statement of the defendant was filed denying the allegations of the plaint, specially that t1-13he disputed land was situate in plot No. 107/2. 4. The defendant also stated that in fact the owner of the disputed plot was the father of the plaintiffs namely Tayyab Khan and that around 25 years prior to the filing of the suit, Tayyab Khan had orally gifted the property in question to the defendant in the presence of various witnesses. 5. The further case of the defendant was that he had constructed the room and verandah in question in 1953 and the land east of the verandah and the room was used by him as his sehan and that after 1952-53 when the plaintiffs’ father, Tayyab Khan had gifted the property to the defendant, he had lost all interest in the property. Further, it was stated that the suit itself was barred by limitation, sepecially when before 1976 and after 1952, no objection was made by either the plaintiffs or their father regarding the possession of the defendant. 6. The Trial Court after framing 16 issues, while deciding issues No. 1, 14 and 15, very categorically held, after taking into account all the oral and documentary evidence, that the property in dispute was gifted by Tayyab Khan, father of the plaintiffs to the defendant and that the defendant was not a tenant in the disputed property in question but was an owner in possession of it. Still further, while dealing with issue No. 2, which was, as to whether the disputed property was situate in plot No. 107/2, the Trial Court categorically found that only some portion of the land and house in question was situate in the northern portion of plot No. 107/2 of Kasba Bhula Shahari, Pargana Mohammadabad. Still further, while dealing with issue No. 2, which was, as to whether the disputed property was situate in plot No. 107/2, the Trial Court categorically found that only some portion of the land and house in question was situate in the northern portion of plot No. 107/2 of Kasba Bhula Shahari, Pargana Mohammadabad. The relevant portion of the judgment of the Trial Court is being reproduced herein as under: ^^vr% eSa bl fu"d"kZ ij igqaprk gwW fd fookfnr Hkwfe edku dk dqN mRRkjh Hkkx] xkVk la[;k 107@2 dLck Hkwyk 'kgjh] ijxuk&eqgEEknkckn esa fLFkr gSA** 7. Issue No. 13 which was with regard to limitation was also decided in favour of the defendant and it was found that the suit was barred by limitation, the defendant being in possession over the suit property since 1952. 8. The First Appellate Court however, reversed the judgment of the Trial Court and after reassessing the evidence which was available on the record gave its own finding and allowed the appeal and decreed the suit. However, with regard to issue No. 2 i.e. about the location of the disputed plot, as to whether it was situate on plot No. 107/2 the finding of the Trial Court was affirmed as the same had also not been challenged by the appellant in the first appeal. The First Appellate Court with regard to the location of the disputed land has stated the following: ^^okn&i= ds var esa fookfnr Hkwfe dk uEcj 107@2 nf'kZr fd;k x;k gSA ftldh pkSgn~nh Hkh fn;k x;k gSA ;ksX; eqaflQ us okn fcUnq uaŒ 2 ds fu"d"kZ esa ;g ekuk gS fd fookfnr Hkwfe] edku dk mRrjh Hkkx vkjkth uaŒ 107@2 es fLFkr gSA ;ksX; eqaflQ ds bl fu”d”kZ ds ckcr mHk; i{k dh vksj ls dksbZ fookn ugha fd;k x;k gSA okn fcUnq uaŒ 6] 7] 8] 9] 10] 11] 12 ds fu"d"kZ ds ckcr Hkh mHk; i{k dh vksj ls dksbZ fookn ugha fd;k x;k vkSj u bl ij cy fn;k x;kA** 9. Regarding issues No. 1, 14 and 15 which dealt with the nature of ownership of the plaintiffs and the defendant, the First Appellate Court gave its finding in favour of the plaintiffs and reversed the findings of the Trial Court. 10. Regarding issues No. 1, 14 and 15 which dealt with the nature of ownership of the plaintiffs and the defendant, the First Appellate Court gave its finding in favour of the plaintiffs and reversed the findings of the Trial Court. 10. The learned counsel for the appellant Sri Vineet Kumar Singh has made the following submissions: (I) The First Appellate Court while deciding the appeal did not formulate any point for determination. (II) When the specific case of the plaintiffs was that the suit property was situate in plot No. 107/2 and when the Trial Court had found that the disputed property was not situate in plot No. 107/2 and that only certain portions of it were found in the northern portion of the plot No. 107/2 and when this finding of the Trial Court was affirmed by the First Appellate Court, then the appeal should not have been decided on any further issue because, as per the submission of learned counsel for the appellant, the suit property should be identifiable as per Order VII, Rule 3 of he Code of Civil Procedure, 1908 and when the identity itself was not certain then the first appeal should not have been proceeded with at all. The relief as had been prayed for in paragraph 16(v) of the plaint was read out by the counsel. It was as under: ^^¼v½ eqn~nbZ;ku dks n[ky Åij cjkenk o :e ,ŒchŒlhŒMhŒ o dejk lhŒMhŒbZŒ,QŒ o iwohZ tehu eqtkfj, uD’kk vthZ ukfy'k okyk vkjkth uaŒ 107@2 gLo pkSgn~nh tSy ij o csn[kyh eqn~nkysg fnyok fn;k tkosA** 11. He submitted that on the perusal of the relief as was prayed for and the finding with regard to issue No. 2 it became certain that the the identity of the land in dispute was not established. Therefore, the suit itself should not have been proceeded with as the resultant decree would be inexecutable and the passing of an inexecutable decree would be an exercise in futility. (III) When the name of the defendant-appellant was entered in the revenue records and the efforts of the plainttiff-respondents to get the the entry in favour of the defendant expunged, failed then the only option with the plaintiff-respondents was to get a suit for declaration filed. (III) When the name of the defendant-appellant was entered in the revenue records and the efforts of the plainttiff-respondents to get the the entry in favour of the defendant expunged, failed then the only option with the plaintiff-respondents was to get a suit for declaration filed. (IV) When the Trial Court dismissed the suit itself after finding that almost all the statements of the plaintiffs and their witnesses were contradictory then the Appellate Court while giving its own findings should have reversed the findings as were arrived at by the Trial Court. (V) The documentary evidence, namely the notice as was given to the defendant by the town area and which was believed by the Trial Court could not have been brushed aside by the First Appellate Court as the notice was a document which was of more than 30 years and was produced from the custody of the person who alone could have produced it. Therefore, it was submitted that the First Appellate Court could not have rejected the evidence without there being a proper challenge to it from the plaintiffs’ side. The Court could not have shifted the burden of proof on the defendant. If the plaintiffs wanted to prove that the document was not such a document which came within the purview of Section 90 of the Evidence Act then it was for them to prove otherwise. Having not done so, it was not proper on the part of the First Appellate Court to have rejected the documentary evidence. (VI) The appellant has also questioned the finding which the First Appellate Court has given with regard to the aspect that there was no requirement of Tayyab Khan to gift the property to the defendant. He has submitted that it was clear from the record that the defendant’s daughter was married to the plaintiff No. 1. He submits that the change of heart of the plaintiff occurred after the daughter of the defendant who was married to the plaintiff-Sayed Khan, died. In reply, the plaintiffs-respondents have stated that when the First Appellate Court had decided the appeal after categorically taking up the issues as were framed by the Trial Court then there was no requirement to formulate any point for determination. In reply, the plaintiffs-respondents have stated that when the First Appellate Court had decided the appeal after categorically taking up the issues as were framed by the Trial Court then there was no requirement to formulate any point for determination. He has further submitted that if the disputed property was not found to be included in plot No. 107/2 then it could have always been located by the boundaries as were given in the plaint map and has thereafter submitted that the reversal of the finding of facts by the First Appellate Court was properly done by the First Appellate Court after reassessing all the evidence as were available on the record of the case. 12. Having heard the learned counsel for the parties and after having gone through the record, I am of the view that the first appeal was wrongly allowed. When the property itself was not identifiable and it was vaguely found that some portion of the disputed property fell in plot No. 107/2, then the further exercise of dealing with the remaining issues, which has been undertaken by the two Courts below was an exercise in futility. 13. The Courts could have proceeded with the case had they found that the suit property was contained in the boundaries as were given in the plaint map. This finding also was not arrived at by the First Appellate Court. Also the reversal of the findings of fact as were arrived at by the Trial Court was done on absolutely irrelevant consideration. 14. The submission of the appellant-defendant that the judgement of the Court below was in contravention of order XLI Rule 31 also appears to be correct in view of the law laid down in Laliteshwar Prasad Singh and others v. S.P. Srivastava (D) Thr. Lrs., 2017 (2) SCC 415 . 15. 14. The submission of the appellant-defendant that the judgement of the Court below was in contravention of order XLI Rule 31 also appears to be correct in view of the law laid down in Laliteshwar Prasad Singh and others v. S.P. Srivastava (D) Thr. Lrs., 2017 (2) SCC 415 . 15. Upon finding that the judgment of the First Appellate Court was in contravention of the provisions of Order XLI Rule 31 C.P.C., this Court ought to have remanded the matter but in view of the fact that the property was not properly identifiable (as per Order VII, Rule 3 CPC) as it was not found to be situate in plot No. 107/2 but was only found to have been located in some northern portion of it, I do not think that the case could be proceeded with and in such circumstances, there is no other option but to allow the appeal, set aside the judgment and decree dated 20.3.1990 and dismiss the suit.