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2020 DIGILAW 1061 (ALL)

Badan Singh v. Mihi Lal

2020-08-06

J.J.MUNIR

body2020
JUDGMENT : 1. This is a defendants’ Second Appeal, arising from a Suit for prohibitory and mandatory injunction. 2. Mihi Lal, the sole plaintiff-respondent (for short, ‘the plaintiff’) instituted Original Suit no.475 of 1975 in the Court of the Munsif East, Ballia on 02.12.1975, praying that a mandatory injunction be granted, commanding the defendants first set to remove their encroachments, comprising a tin-shed and some other structures, described as a ‘Palani’, both denoted by numericals in the plaint map, besides cattle troughs and tethers, denoted by letter N, as also brick-blocks to their water drain, denoted by letters p] N] t] > all done in a part of their sehan to the east of their house. Also, constructions located to the east of their house, in a part of their sehan, denoted by letters 2, 3’, 6, 7, may be ordered to be removed; all to be done within a specified period of time, as may be stipulated by the Court. In the event of breach, the same may be ordered to be removed through process of the Court. A relief for permanent prohibitory injunction was also sought to the effect that an injunction be granted in favour the plaintiff and the defendant second set, forbidding the defendants first set from interfering in the possession over their eastern sehan (courtyard), denoted by letters 2, 3’, 6, 7, as shown in the plaint map, or any part thereof by digging up a foundation, or raising constructions, or damaging or demolishing their troughs and cattle tethers, or blocking the flow of their water drains, both rain water and ordinary drainage, or blocking the incoming sunlight and air through their windows, in the east of their house, denoted by letters d [k x ?k , or otherwise interfering with their possession over land denoted by figures 2, 3’, 6, 7, as shown in the plaint map. There is an alternate relief for possession as well, praying that if the plaintiff and the defendant second set be found to have been dispossessed from any part of the suit property, a decree for possession be passed in favour of the plaintiff and the defendant second set and against the defendants first set. 3. A better description of the parties to the Suit, who are now parties to the Appeal, would be gainful. As already said, Mihi Lal is the sole plaintiff. 3. A better description of the parties to the Suit, who are now parties to the Appeal, would be gainful. As already said, Mihi Lal is the sole plaintiff. He is the plaintiff-respondent no.1 to this Appeal. He is now dead and represented on record by his heirs and legal representatives in the present Appeal. 4. Badan Singh, Jangi Singh, both sons of Ganga Bishun Singh, Dhan Dayal Singh and Fateh Bahadur Singh, both sons of Jangi Singh, are the defendants first set to the Suit. They are the four contesting defendants. Of the four contesting defendants, Badan Singh, Jangi Singh and Dhan Dayal Singh, have preferred the instant Second Appeal. The fourth contesting defendant, Fateh Bahadur Singh has been impleaded as defendant-respondent no.5 to this Appeal. The defendants-appellants, Badan Singh and Jangi Singh are now dead and represented on record by their LRs. Likewise, defendant-respondent no.5, Fateh Bahadur Singh is also dead and represented on record by his LRs. Thus, of the four original contesting defendants-respondents, which includes the three appellants, three are dead and represented here by their LRs. Contesting defendant, Dhan Dayal Singh, who is defendant-appellant no.3 to this Appeal, survives. The three defendants-appellants and defendant-respondent no.5, shall hereinafter collectively be referred to as the contesting defendants. This reference includes their LRs. 5. Jag Lal, Parasu Ram, both sons of Raja Ram and Radha Kishun, son of Nawab, were the three defendants second set to the Suit, or so to speak the proforma defendants. Proforma defendants, Jag Lal, Parasu Ram and Radha Kishun, are impleaded as defendants-respondents to this Appeal. Of them, Jag Lal and Radha Kishun are dead and represented in this Appeal by their LRs. Defendants second set to the Suit, who are respondents nos.2, 3 & 4 to this Appeal, shall hereinafter collectively be referred to as the proforma defendants. This shall include reference to the LRs of the deceased proforma defendants. Any reference to an individual party to the Suit, shall be by reference to his name as mentioned in the plaint, giving rise to the Suit. 6. Of the four contesting defendants, Badan Singh, Jangi Singh and Dhan Dayal Singh, contested the Suit. They filed a joint written statement dated 15.01.1973 along with a map annexed. Any reference to an individual party to the Suit, shall be by reference to his name as mentioned in the plaint, giving rise to the Suit. 6. Of the four contesting defendants, Badan Singh, Jangi Singh and Dhan Dayal Singh, contested the Suit. They filed a joint written statement dated 15.01.1973 along with a map annexed. The claim of the plaintiff is that he and the proforma defendants are in occupation of the suit property, including the adjoining house, since ancient times, when their ancestors settled there. Their ancestors settled there at a time when Mauja Bankata lay far off from Ballia City. The City of Ballia, at that time, lay far to the south. It is claimed that the plaintiff and the proforma defendants have been in occupation of the house and the suit property, abutting it to the north and east, since the time of their ancestors. The ancestors of the plaintiff and the proforma defendants have always utilized the suit property as their sehan. It has been used always by members of the family to sit and move about, to tether and feed cattle, to process dung, store wood and hay, and for other purposes, connected with their daily life. 7. It is the plaintiff’s claim that to the east of the suit property is a public road, running from the north to the south. It is the plaintiff’s further claim that they have their drainage outlet, including drainage for rain water towards east of their house, opening into the suit property, which flows water across the suit property into the public drain, abutting the public road to the east. Four windows, denoted by letters d [k x ?k , also open to the east, which provide ventilation and light to the inmates of the house. The plaintiff further pleads that the contesting defendants have their residence and occupation far away to the east of the suit property. They have no right whatsoever to the suit property/ sehan of the plaintiff and the proforma defendants denoted by figures 2, 3, 3’, 6, 7. The plaintiff pleads, for a cause of action, the forcible putting up of a tin shed on the eastern boundary wall of their house, denoted by figures 2, 2’ in the plaint map. Despite protest, the contesting defendants are claimed to have declined withdrawal of encroachment and removal of the tin shed. The plaintiff pleads, for a cause of action, the forcible putting up of a tin shed on the eastern boundary wall of their house, denoted by figures 2, 2’ in the plaint map. Despite protest, the contesting defendants are claimed to have declined withdrawal of encroachment and removal of the tin shed. In addition, the contesting defendants are said to have constructed on the portion of the suit property, denoted by figures 7, 8, 9, 10, also part of the common courtyard of the plaintiff and the proforma defendants, tethers and cattle troughs, where they have tethered their cattle. Hence, the Suit. 8. The contesting defendants refuted the plaintiff’s claim on the basis of a registered lease deed (patta istemrari) dated 29.08.1959, executed in their favour by the Zamindar, Rameshwar Narain Lal, demising an area 0.01 acre over plot no.40/2. It is the contesting defendants’ case that their land is located in plot no.40/2 to the east of the plaintiff’s house and west of the public road. According to them, the suit property is theirs and located between the plaintiff’s house and the public road. It is also their defence that acting on the registered lease deed, the name of the plaintiff and proforma defendant Jag Lal, has been expunged and their names recorded in the khasra of 1368 fasli over plot no.40/2. 9. On the basis of pleadings of parties, the following issues were framed: “1. Whether the plaintiff and defendant second set are the owners of the land in suit and have been in possession thereon? 2. Is the suit barred by time? 3. Is the suit barred by section 34 of the Specific Relief Act? 4. It is the suit barred by estoppel and acquiescence? 5. Is the suit undervalued and court fee paid is insufficient? 6. Whether the plaintiff and defendant second set have been flowing water through Nabdan passing through the land in suit and have acquired any right to continue to flow the water through the said nabdan? 7. To what relief, if any, is the plaintiff entitled?” 10. The Sixth Additional Munsif, Ballia, who tried the suit, decreed it with costs by his judgment and decree of 24th May, 1977. 7. To what relief, if any, is the plaintiff entitled?” 10. The Sixth Additional Munsif, Ballia, who tried the suit, decreed it with costs by his judgment and decree of 24th May, 1977. He ordered the contesting defendants to remove their tin shed and other constructions from land, denoted by figures 4, 17’’, 17’, 16 in the Commissioner’s Map, paper no.29 x&2 and to vacate the said land. The Trial Court further ordered the contesting defendants not to interfere with the possession of the plaintiff and the proforma defendants over the suit property. The map, bearing paper no.29 x&2 , was made a part of the decree. 11. Badan Singh, Jangi Singh and Dhan Dayal Singh, amongst the contesting defendants, carried Civil Appeal no.276 of 1977 to the Court of the learned District Judge. The Appeal came up for determination before the learned II Additional District Judge, Ballia on 28th February, 1978. The learned Additional District Judge, by his judgment and decree impugned dated 28th February, 1978, dismissed the Appeal with costs and affirmed the decree passed by the Trial Court. 12. Aggrieved, this Appeal from the appellate decree was preferred by Badan Singh, Jangi Singh and Dhan Dayal Singh, arraying the fourth contesting defendant, Fateh Bahadur Singh as a respondent to this Appeal. 13. This Appeal was admitted to hearing on 10.07.1978, when the following substantial questions of law were formulated: “1. Whether the description of a piece of land by its boundaries was to prevail over the dimensions or the area of the land? 2. Whether the suit was barred by limitation? 3. As to the effect of the registered lease deed dated 29th August, 1959?” 14. Heard Sri Chandrakesh Rai, learned Counsel for the contesting defendants (appellants) and Sri Pradeep Kumar Rai, learned Counsel appearing for the plaintiff and the proforma defendants (respondent no.3 and LRs of respondents nos.1, 2, 4). 15. It must be recorded here that the contesting defendants made an application under Order XLI Rule 27 read with Section 151 CPC, being Civil Misc. Application no.4034 of 1989, seeking to bring on record some additional evidence, being certified copies of three documents. The said application was rejected by this Court vide order dated 12.04.2018. 16. 15. It must be recorded here that the contesting defendants made an application under Order XLI Rule 27 read with Section 151 CPC, being Civil Misc. Application no.4034 of 1989, seeking to bring on record some additional evidence, being certified copies of three documents. The said application was rejected by this Court vide order dated 12.04.2018. 16. The submission of Sri Chandrakesh Rai, learned Counsel for the contesting defendants is that the said defendants acquired rights to the suit property, that comprises plot no.40/2, admeasuring 0.01 acre through a registered lease deed (patta istemrari) dated 29.08.1958, executed in their favour by the Zamindar, Rameshwar Narain Lal. It is pointed by him that the suit property is located to the east of the plaintiff’s house and west of the road. There is no evidence of a door of the plaintiff’s house, opening towards the east. It is urged that the findings of the Courts below, particularly, the Lower Appellate Court, which hold the area and dimensions of land acquired by the contesting defendants on lease to be utterly incompatible with the size and nature of constructions raised, are manifestly illegal. This, Mr. Rai says, is so because in the event of incongruence between the area and/ or dimensions on one hand and boundaries on the other, the boundaries prevail. It is here that, according to Mr. Rai, the Courts below have faltered. 17. Sri Pramod Kumar Rai, learned Counsel appearing for the plaintiff and the proforma defendants, on the other hand, submits that this substantial question of law is not at all involved or arises for consideration in this Appeal. He submits that no substantial question of law, whatsoever, including the two others formulated at the time of admission of the Appeal, arise for consideration. According to Mr. Pramod Kumar Rai, the Appeal deserves to be dismissed under sub-Section (5) of Section 100 CPC as one that involves no substantial question of law. He urges that the record, which is now available, clearly shows the total absence of any substantial question of law in this Appeal. 18. This Court has keenly considered the rival submissions and perused the record. He urges that the record, which is now available, clearly shows the total absence of any substantial question of law in this Appeal. 18. This Court has keenly considered the rival submissions and perused the record. Much emphasis has been laid by Sri Chandrakesh Rai upon the fact that the Courts below, particularly, the Lower Appellate Court has largely based its findings on the area and dimensions of the land, mentioned in the registered lease deed, not tallying with the contesting defendants’ possession on the spot over the demised plot claimed by them. He submits that it is not the area or the dimensions of the land that are decisive, but the boundaries mentioned in the lease deed. It is submitted that the Lower Appellate Court has committed a manifest error in giving precedence to the dimensions and area of the demised plot over the boundaries of the said plot, mentioned in the lease deed. According to the learned Counsel for the contesting defendants, the law is clear that boundaries prevail over the area and dimensions, mentioned in a title document. 19. This Court finds that the Courts below, particularly, the Lower Appellate Court has not at all based its findings upon any incongruence between the area or dimensions of the plot, claimed by the contesting defendants to be held on lease on the one hand and its boundaries shown in the title deed. Rather, the Lower Appellate Court has done an extensive survey of evidence, including the spot position, about which there is ample evidence through the Commissioner’s report, comparing it with the possible dimensions of the land claimed by the contesting defendants to be held on lease between the plaintiff’s house and the public road. The Lower Appellate Court has reasoned that on reckoning the total recorded dimensions of plot no.40/3, that is recorded in the name of the plaintiff and the proforma defendants ever since 1334 falsi, the area of land between the plaintiff’s house and the public road would be just two and a half kari in breadth and stretching the whole length of plot no.40, north to south, which would measure one decimal. The constructions, that are claimed to be an osara raised by the contesting defendants, could not lie in that narrow strip of land. The constructions, that are claimed to be an osara raised by the contesting defendants, could not lie in that narrow strip of land. If these constructions were there, it would be an intrusion to the west into land owned by the plaintiff and the proforma defendants. Thus, the Lower Appellate Court has considered the incongruence not between the dimensions of the contesting defendants’ land claimed to be held on lease mentioned in their conveyance and its boundaries, but the area, dimensions and layout of that land has been considered with reference to the entire area of plot no.40, lying between the plaintiff’s house and the public road. It is not, therefore, a case where the area and dimensions of land mentioned in a deed of title have been given precedence over boundaries mentioned in the title document. 20. Apart from this consideration of the parties case and their evidence, the Lower Appellate Court has found that plot no.40/3, admeasuring 13 decimals, recorded as abadi in the year 1334 fasli, has been subsequently renumbered as plot no.40/4, admeasuring 13 decimals. The Court has found the plaintiff and the proforma defendants consistently recorded in the khasra for the fasli years 1334, 1365, 1364, 1368, 1356, 1345 and 1359. Each of these extract have been marked as Exs. Nos.10, 2, 3, 4, 5, 6 and 4, in that order. It is also held for a fact by the Lower Appellate Court that khasra no.40/4 is consistently recorded as abadi. It has also been noticed that in the khasra extract for the fasli year 1335 (Ex. 2), the names of the plaintiff, Mihi Lal and the proforma defendant, Jag Lal alone are recorded in the remarks column. The Lower Appellate Court has also taken note of the voter list for the year 1950, where the names of the plaintiff and the proforma defendants, besides other members of the family find place. The Lower Appellate Court has also taken note of a ration card, relating to the year 1953 (Ex. 8), which shows, in the opinion of the Lower Appellate Court, that the plaintiff and proforma defendants are natives of the place since before the year 1950. The Lower Appellate Court has also reasoned that the khasra extract for the year 1334 fasli is correlated to the ration card. 8), which shows, in the opinion of the Lower Appellate Court, that the plaintiff and proforma defendants are natives of the place since before the year 1950. The Lower Appellate Court has also reasoned that the khasra extract for the year 1334 fasli is correlated to the ration card. The inference is that the plaintiff and the proforma defendants have been residing at the place where the suit property is located much before the year 1334 fasli. It must be remarked here that the year 1334 fasli correspondents to the calendar year 1926. 21. About the title of the plaintiff’s lessor, the Zamindar, Rameshwar Narain Lal, who is said to be a sir holder of plot no.40/2, it has been held by the Lower Appellate Court that there is nothing on record to establish that the said Zamindar had been in possession over the said plot. It has been remarked that the evidence, on the other hand, suggests that the entire plot no.40 was either abadi or devoted to a public road. There was no question of actual physical possession of the Zamindar on any portion of plot no.40. It has also been held that upon execution of the lease deed dated 29.08.1959, the contesting defendants tried to bring up evidence about their possession over plot no.40/2 for a long time. 22. The Lower Appellate Court has held in substance that Zamindar never had title or possession to any part of plot no.40, entitling him to convey through lease, rights in any part of the said plot to the contesting defendants. It has additionally been found by the Lower Appellate Court that the names of the contesting defendants came to be recorded over plot no.40/2 in the year 1368 fasli, which was expunged on 25.03.1961. It has been held that the contesting defendants never entered possession of the land, in accordance with the lease deed, set up by them. 23. The Lower Appellate Court has also extensively considered the oral evidence led by parties. It has been, particularly, remarked about the evidence of Badan Rai, DW-3, who happens to be one of the contesting defendants and the one who produced the lease deed of the year 1959, that the suit property was property of the Lalas. 23. The Lower Appellate Court has also extensively considered the oral evidence led by parties. It has been, particularly, remarked about the evidence of Badan Rai, DW-3, who happens to be one of the contesting defendants and the one who produced the lease deed of the year 1959, that the suit property was property of the Lalas. It has been remarked that he pleads ignorance about the suit property, being the property of Rameshwar Narain Lal, from whom he claims to have got it on lease. It has been remarked that it is strange that Badan Rai said in his evidence that the suit property was under cultivation before it was leased in his favour, though his pleadings say that it was always abadi, of which he has been in possession qua abadi since 40 years. The Lower Appellate Court has also noted that though the lease deed relates to plot no.40/2, but DW-3 has said in his evidence that it relates to plot no.240. It has been remarked about this witness that he has no idea about the suit property. The Trial Court has held in like manner. The evidence does show these facts to be correctly appreciated by the two Courts below. In these circumstances, the first substantial question of law does not at all arise. 24. About the second substantial question of law, it is pointed out that the plea of limitation was given up before the Trial Court as issue no.2, about the bar of limitation, was never pressed on behalf of the contesting defendants. As such, it was answered in the negative in favour of the plaintiff. For the same reason, it was not pressed before the Lower Appellate Court or gone into by that Court. 25. Sri Chandrakesh Rai, however, submits that the name of the contesting defendants having been recorded on 25.03.1961, the Suit filed after 12 years on 11.12.1975 is clearly time barred. This Court does not think that this question also, at all arises. This is so, on account of the fact that the entry that was made in the year 1368 fasli, corresponding to the calendar year 1960 was expunged on 25.03.1961, a fact recorded by the Lower Appellate Court. The said finding has not been shown by the contesting defendants to be vitiated by an error apparent. This is so, on account of the fact that the entry that was made in the year 1368 fasli, corresponding to the calendar year 1960 was expunged on 25.03.1961, a fact recorded by the Lower Appellate Court. The said finding has not been shown by the contesting defendants to be vitiated by an error apparent. There was, thus, no reason for the plaintiff or the proforma defendants to institute a suit earlier. This Suit was instituted apparently when the suit property was encroached upon by the contesting defendants without any right, title or interest. It is on that account that the plea of limitation was not at all pressed before the two Courts below. Certainly, the substantial question of law no.2 also does not arise on the facts here. 26. So far as the third substantial question of law is concerned, the Zamindar, from whom the contesting defendants claimed to have acquired title through the registered lease deed dated 29.08.1959, has been held by the two Courts below, not to be one who held title or possession of the property purportedly conveyed. As such, the third substantial question of law framed, also does not arise for consideration. 27. This Court upon hearing parties and perusing the record, particularly, the plaintiff and the proforma defendants, is of opinion that none of the three substantial questions of law, formulated at the time of admission of this Appeal, arise for consideration. No other substantial question of law has been mooted to be involved in this Appeal on behalf of the contesting defendants. This Court also does not find any other substantial question of law to be involved. 28. No other point was pressed. 29. This Appeal is accordingly determined under sub-Section (5) of Section 100 CPC as one that does not involve any of the substantial questions of law formulated at the time of admission or any other substantial question of law whatsoever. 30. The Appeal is, accordingly, dismissed. 31. The plaintiff and the proforma defendants shall be entitled to recover Rs.20,000/-in costs before this Court. All interim orders stand vacated and all pending applications stand disposed of. 32. Lower Court records be sent down at once.