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2019 DIGILAW 2495 (ALL)

Amar Deo Ojha v. Krishna Ojha

2019-11-06

SIDDHARTHA VARMA

body2019
JUDGMENT : SIDDHARTHA VARMA, J. 1. This second appeal has been filed against the judgement and decree dated 13.5.2016 passed by the District Judge, Ballia, in Civil Appeal No. 31 of 2016 which had affirmed the judgement and decree dated 14.3.2016 passed by the Civil Judge (J.D.) Ballia in Original Suit No. 424 of 2007. 2. The plaintiff had filed a suit for the relief of permanent injunction stating that the defendant (appellant here) may be injuncted from interfering with the possession of the plaintiff over the land marked by nos. 1-4-5-6-7-1 and by nos. 6-8-9-10 in the plaint map. The case of the plaintiff had been that the area marked by numbers 1-4-5-6-7-1 had formed a part of plot no. 48 which was the plaintiff's sehan land and he had inherited the same from his grand-father, namely, Jamuna Ojha. 3. To bolster his case, the plaintiff had taken support of the papers which were filed in another suit being Suit no. 274 of 1993 which was filed by Vimlesh Chaubey, a person who was not a party to the suit of the plaintiff. Suit No. 274 of 1993 was dismissed by a judgement and decree dated 21.1.1995. The plaintiff of the suit from which the instant appeal has arisen had alleged that on 30.9.2007 the defendants in the instant case had threatened that they would take over possession over the land numbered as 1-4-5-6-7-1 in the plaint map and would also stop the water from flowing from the nali which was running on the land numbered as 6-8-9-10 in the plaint map. The defendants, the appellant here, filed their written statement denying the rights and title of the plaintiff over the land in question and stated that since their houses opened southwards into the land numbered as 6-8-9-10 and since they had a Chabutara over it the plaintiffs could not have any right over the land in question. Upon filing of the suit, an Amin of the Civil Court went on the spot and submitted his report alongwith a map on 28.11.2007. The report was numbered as 19(ga)(2) and the map was numbered as 20(ga) (2). For deciding the suit the Trial Court had framed as many as nine issues. 4. Issue no. 1 was to the effect as to whether the land which was claimed by the plaintiff to be his own land was his or not. The report was numbered as 19(ga)(2) and the map was numbered as 20(ga) (2). For deciding the suit the Trial Court had framed as many as nine issues. 4. Issue no. 1 was to the effect as to whether the land which was claimed by the plaintiff to be his own land was his or not. Upon giving a finding in favour of the plaintiff in the affirmative the suit was decreed. The defendant filed a first appeal being First Appeal No. 31 of 2016 in which only one point of determination was drawn and that was also to the effect as to whether the plaintiff was the owner in possession over the land in question. The First Appeal was, however, dismissed on 13.5.2016. The instant second appeal when was filed was admitted on 22.12.2016 on the questions of law as had been framed in the memo of appeal. There were 10 questions of law which were framed and the same are being reproduced here as under:- 1. Whether the suit for permanent injunction filed by the plaintiff-respondent without there being any cause of action, is maintainable? 2. Whether both the courts below committed manifest error of law in decreeing the suit and passing impugned orders by treating the land the land in dispute to be part of land of Shikmi No. 48 without ascertaining correct location and area of Shikmi No. 48? 3. Whether the plaintiff-respondent who stand on his own leg, his suit cannot be decreed on the weakness of defendants-appellants? 4. Whether the paper filed in the suit No. 274 of 1993 in which the defendants-appellants were not party, can be relied in decreeing the suit? 5. Whether the courts-below are justified in decreeing the suit of the plaintiff-respondent without ascertaining the location of Khasra No. 48 where area is given in the Khasra? 6. Whether the courts-below were justified in law in decreeing the suit of the plaintiff without establishing his case by any cogent documents/evidence regarding recording the name of Bahuriya Piyari Kunwari even in Khasra on record? 7. Whether both the courts below have committed manifest error of law in not deciding the objections filed by the defendants-appellants against the Amin-report and whether without deciding said objection, both the courts below were justified in law in passing impugned orders? 8. 7. Whether both the courts below have committed manifest error of law in not deciding the objections filed by the defendants-appellants against the Amin-report and whether without deciding said objection, both the courts below were justified in law in passing impugned orders? 8. Whether the impugned orders passed by the courts-below are against the actual spot position, if yest then on what basis the impugned orders have been passed by the courts below? 9. Whether the findings recorded by the courts below that the disputed land is part of land of Shikmi No. 48, is based on any cogent evidence and document, if not, then on what basis the impugned orders have been passed by the courts below? 10. Whether the impugned orders passed by the courts below are sustainable in the eyes of law? When the case was heard finally and the judgement was reserved the counsel appearing for the Appellants and the Respondent had submitted their written submissions. The Appellant while arguing the appeal mainly argued on the substantial questions of law numbered as 1, 4 and 7. He submitted that when there was only an apprehension in the mind of the plaintiffs that the disputed land would be encroached upon by the defendants and that thereafter the plaintiffs would be deprived from using the same then there was no cause of action yet. With regard to the records of the Original Suit No. 274 upon which the plaintiff had depended and which had been dealt with by the two courts below the learned counsel appearing for the Appellant submitted that the suit was filed by a person who was not a party in the instant suit against the plaintiff of the instant suit. The defendant/Appellant had tried to get himself impleaded in the Suit No. 272 of 1993 but his impleadment application was rejected. Therefore any reliance on the pleadings of Suit No. 272 of 1993 which the Court has done while deciding the instant suit from which the instant second appeal arose was an illegality committed by the court's below and which required to be undone. 5. Therefore any reliance on the pleadings of Suit No. 272 of 1993 which the Court has done while deciding the instant suit from which the instant second appeal arose was an illegality committed by the court's below and which required to be undone. 5. Learned counsel for the Appellant submitted that to arrive at a finding regarding ownership of the land claimed by the plaintiff, the Trial Court as also the Appellate Court should have independently applied their minds and should have arrived at an independent finding irrespective of the finding arrived in the Original Suit No. 274 of 1993. Learned counsel for the Appellant submitted that any finding in the Suit No. 272 of 1993 could not have been used by the Trial Court while deciding the suit from which the instant second appeal arose as the defendants were never a party in that suit. 6. Learned counsel for the Appellant further submitted that if the commission report dated 28.11.2007 is seen then it appears that the report had given an opinion of the Amin with regard to the Chabutara constructed on the plot in dispute and no effort was made by the Court to come to an independent finding as to when the Chabutara was exactly built. Learned counsel for the Appellant submitted that the defendant had raised an objection with regard to the findings in the Amin report but they were never considered. Learned counsel further submitted that if the map attached to the report was seen it would become evident that Dinanath, the defendant no. 2 ( the appellant no. 2) in the instant second appeal had only one ingress and egress on the southern side which opened in the plot in question. Learned counsel submitted that with regard to the Chabutara which was shown in Map 20(ga)(2) of the Amin report, no finding whatsoever was arrived at by the Courts below. Learned counsel for the appellant further submitted that in the Amin report there was a clear finding that the Nali, to begin with, was an open Nali and was also a pakka one and it went westward. It also said that even though to begin with it was open but as it reached its destination it had gone underground. He submitted that with regard to this opinion of the commissioner no finding was arrived at. 7. It also said that even though to begin with it was open but as it reached its destination it had gone underground. He submitted that with regard to this opinion of the commissioner no finding was arrived at. 7. In reply, the learned counsel for the respondents plaintiff, however, submitted that in the written statement the defendant had denied the owner ship of the plaintiffs over the land in question then a cause of action was evident. Learned counsel appearing for the Respondent submitted that when the pleadings between the parties are exchanged and it is evident to the Court that there is a cause of action available then it had not to be proved by the plaintiff that the apprehension was wrong. 8. In the instant case when the defendant had denied the title of the plaintiff over the land in question and the plaintiffs were apprehending that the defendants might encroach upon the land then there was definitely a cause of action. Learned counsel further submitted that when the judgement passed in the Suit No. 274 of 1993 had given its seal of approval to the written statement filed by the plaintiff in that suit then the written statement could always have been used in the instant suit. Still further learned counsel for the plaintiff respondents submitted that the finding given in the Amin report that the Chabutara was made after the filing of the suit gets credence from the fact that in the map attached with the written statement there was no Chabutara made. 9. Learned counsel for the Plaintiffs/Respondents further submitted that the instant Second Appeal was filed against judgments which had concurrently being passed in favour of the plaintiffs and, therefore, no interference be made in the instant second appeal. He submitted that no substantial question of law at all arose and the instant second appeal, therefore, be dismissed. 10. Having heard the learned counsel for the appellant and the learned counsel for the respondents, I am of the view that when the defendants had denied the title over the land in question in their written statement then definitely a cause of action was available to the plaintiff and the Court rightly entertained his suit. 10. Having heard the learned counsel for the appellant and the learned counsel for the respondents, I am of the view that when the defendants had denied the title over the land in question in their written statement then definitely a cause of action was available to the plaintiff and the Court rightly entertained his suit. So far as the question of reliance over the documents filed in Suit No. 274 of 1993 is concerned, I find that the Defendants/Appellants was not a party to that suit. He had not admitted that the documents filed by the respondents in the instant second appeal were correctly filed in the Suit No. 274 of 1993. The impleadment application which the Defendants had filed in Original Suit No. 274 of 1993 had been rejected. If the court wanted to give a finding with regard to the land over which the Plaintiff was claiming title and possession then the courts below should have given a finding independent of any finding arrived at in Suit No. 274 of 1993. 11. So far as the question with regard to the reliance on the Amin report and map is concerned, I find that since there was no Chabutara made in the map attached in the written statement, it can be safely concluded that the Chabutara was built during the pendency of the suit. However, since there was a door of the defendant no. 2 which opened on the southern side of the house of the defendant no. 2 and which has been shown as a door in the map and the Amin's report and since the existence of that door has not been dealt with by the courts below, I feel that the court' below fell in error while dealing with the Commission Report. A finding ought to have been arrived at as to what would be effect of the door opening in the southern side of the house of the defendant no. 2. There is also no finding in both the judgement as to what would be the result of the fact that the Nali in front of the house of the defendant initially was an open one and then had gone underground as had been given in the Amin's report. 2. There is also no finding in both the judgement as to what would be the result of the fact that the Nali in front of the house of the defendant initially was an open one and then had gone underground as had been given in the Amin's report. Since there was a wrong reliance on the papers filed in the Suit No. 274 of 1993 and since the Amin's report and map had not been considered in their right perspective, I find that the courts below fell in error in coming to a conclusion that the land in question belonged to the plaintiff. Ends of justice would be served if the Judgement and Decree of the Courts below dated 14.3.2016 and 13.5.2016 of the Trial Court and the First Appellate Court respectively are set aside and the matter is remanded back to the Trial Court for a decision afresh with regard to the ownership after considering the Amin's report in its right perspective and after giving a finding independent of the papers/pleadings which related to the Suit No. 274 of 1993. The matter is, therefore, remanded back to the Trial Court. 12. The substantial questions no. 1, 4 and 7 which were argued by the Appellants counsel are accordingly answered. The other question need not be answered. 13. The second appeal is partly allowed.