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2022 DIGILAW 1628 (ALL)

Sheo Badan v. Prithvi Pati

2022-10-11

SIDDHARTHA VARMA

body2022
JUDGMENT : 1. This Second Appeal has been filed against the judgment and decree dated 20.1.1983 passed by the Civil Judge, First, Gorakhpur in Civil Appeal No.200 of 1982. 2. The plaintiff aggrieved by the disturbance which was being caused by the defendant in his plot no.2826/11, had filed a suit being Original Suit No.53 of 1978. When the suit was dismissed, the First Appeal being Appeal No.200 of 1982 was filed. When the First Appeal was allowed, the defendants filed the instant Second Appeal. 3. Plaintiff's case was that he was in possession over 11 decimals of plot no.2826/11 which he had got in exchange from Ganga and Harivansh after he had surrendered his plot no.2573/1 to them. In effect, the case was that the plaintiff had got plot no.2826/11 (earlier 2826/10) in exchange of his plot no.2573/1. Both the plots were having areas of 11 decimals. This exchange, as per the plaintiff, had taken place in the year 1950. When on 13.4.1976, the defendants had without any authority encroached upon the land of the plaintiff, he had on various occasions written to the police and when nothing happened, the plaintiff filed the suit. 4. The plaintiff's suit was dismissed on the ground that the Trial Court found that the plaintiff had not been able to prove his case. However, the First Appellate Court had decreed the suit on the ground that the plaintiff had been able to establish that he had given his plot no.2573/1 measuring 11 decimals in exchange of plot no.2143 which was subsequently converted to plot no.2826/10 and then later on to 2826/11 and, therefore, he had a right over the same. The First Appellate Court had also found that the defendants could not prove their case as they were in effect mentioning about a plot being plot no.2143/1 which was theirs and which in no manner was the same as plot no.2143. 5. The Appellate Court had formulated three questions which were to the following effect and were to be answered by it : (1) Was the plaintiff bhumidhar of the plot in question ? (2) Was the plaintiff entitled for any damages ? (3) Whether the suit was barred by limitation ? 6. 5. The Appellate Court had formulated three questions which were to the following effect and were to be answered by it : (1) Was the plaintiff bhumidhar of the plot in question ? (2) Was the plaintiff entitled for any damages ? (3) Whether the suit was barred by limitation ? 6. With regard to the first question, the First Appellate Court had, after dealing with all the relevant evidence before it come to a conclusion that plot no.2573/1 which belonged to the plaintiff was in fact given in exchange of plot no.2143 to Ganga and Harivansh. While arriving at this finding, the First Appellate Court had concluded on the basis of various evidence. It had found that earlier the plaintiff was the owner of plot no.2573/1 area 11 decimals. This plot, according to the First Appellate Court, was an agricultural plot and it was exchanged by plot 2143 area 11 decimals which was subsequently numbered as 2826/10 and later on was numbered as 2826/11 at the time of consolidation. It was shown that this plot had abadi but upon objections being made by Ganga and Harivansh, it was again recorded as agricultural. 7. The First Appellate Court, while dealing with the case of the defendants, had categorically held that the defendant when was mentioning about the plot, being plot no.2143/1 which in the year 1905 was divided into sub-plots numbered as 112 to 117 as being of the defendant then he was mentioning about a totally different plot. The First Appellate Court categorically held that plot no.2143/1 was never numbered as 2826/10. It has stated that the "Fard Mutabik" (exchange form) which was numbered as Paper No.68-Ga, had no mention about plot no.2143/1. The First Appellate Court also found that the defendants had no right because they had althrough stated that they were always in possession over plot no.2143/1 and that they had also by means of a sale deed purchased the same on 17.12.1977 from Ganga and Harivansh. The First Appellate Court also concluded that when the defendants althrough were in possession over the plot in question then what was the necessity of purchasing the same on 17.12.1977. The First Appellate Court also concluded that when the defendants althrough were in possession over the plot in question then what was the necessity of purchasing the same on 17.12.1977. The First Appellate Court, therefore, concluded that as per section 118 of the Transfer of Property Act, 1872 there was a proper exchange of plot no.2573/1 (of the plaintiff) with plot no.2143 (of Ganga and Harivansh) and since at the time when the exchange had taken place i.e. in the year 1950, the plots were valued not more than Rs.100/-, there was no requirement of a written document. It had also found that a zamindar was not barred by the requirements of the U.P. Tenancy Act, 1939. 8. While dealing with the defendants' case with regard to the document no.58-Ga, which was placed on record as evidence and which was the khatauni for the years 1333 Fasli and 1334 Fasli, it held that the document only evidenced that the Zamindar of the village was Ram Chandra Tiwari. The First Appellate Court had concluded that in 1950, when the exchange had taken place as per the document which was numbered as 23-Ga, it was clear that Ganga and Harivansh were owners of plot no.2573/1 whereas the plaintiffs were entered over plot no.2826/10. It has also been found that on this paper the factum of transfer is mentioned. With regard to document nos.36-Ga and 37-Ga which the defendants had placed on record, the Court categorically had given a finding that they were with regard to plot no.2143/1 and the defendant could not get any advantage from this paper. The Court below also had concluded that since the plaintiff and defendants were not at quarrel with regard to the fact that the land in question was not numbered as 2143/1, there was no question of getting any survey done. It further concluded that since the defendants were althrough wanting to establish that plot no.2826/11 was a plot which had got converted from plot no.2143/1 and this fact the defendants could not establish, the defendants had no case. 9. Assailing the judgment and decree of the First Appellate Court, Sri Ashok Kumar Shukla, learned counsel for the appellant/defendant argued on the three questions of law which are as follows and which were formulated at the time of admission :- 1. 9. Assailing the judgment and decree of the First Appellate Court, Sri Ashok Kumar Shukla, learned counsel for the appellant/defendant argued on the three questions of law which are as follows and which were formulated at the time of admission :- 1. whether the lower appellate Court had erred in law in not getting the plot in dispute demarcated by preparing a survey map and not getting the identity of the plots established as is a requirement under Order VII Rule 3 C.P.C. and under Order XXVI Rule 9 C.P.C.? 2. whether the exchange in favour of the plaintiff was legal ? 3. whether the land in dispute was a land appurtenant to the house of the defendant ? 10. Learned counsel for the appellant vehemently argued that when there was a question involved as to whether plot no.2826/11 was originally plot no.2143 and the defendants were coming up with various documents that the plot n o.2826/11 was earlier plot no.2143/1 which had been partitioned into plot nos.112 to 117, then survey ought to have been done. He relied upon a judgment of the Supreme Court in the case of Sreepat vs. Rajendra Prasad & Ors. reported in JT 2000 (7) SC 379 and submitted that when there was a dispute with regard to the identity with regard to a plot then a survey was a must. Since upon a bare perusal of the order of the First Appellate Court this Court finds that in fact there was no dispute with regard to plot no.2826 as the document 23-Ga definitely showed that plot no.2826/10, now numbered as 2826/11, had gone to the plaintiff after an exchange with the plaintiff's plot no.2573/1 then there was absolutely no dispute with regard to the identity of the plot. In fact the only dispute which the defendants were raising was that the plot no.2826/11 was earlier plot no.2143/1 and this the defendant-appellant could not prove. The document which they had relied upon i.e. paper no.68-Ga had not mentioned about the plot no.2143 at all. Hence, the Court finds that there was no error committed by the First Appellate Court in not getting a survey conducted. 11. The document which they had relied upon i.e. paper no.68-Ga had not mentioned about the plot no.2143 at all. Hence, the Court finds that there was no error committed by the First Appellate Court in not getting a survey conducted. 11. With regard to the second question as to whether the exchange in favour of the plaintiff was legal, the Court finds that as per the provisions of section 53 of the U.P. Tenancy Act, 1939, an agricultural land could have been exchanged by an agricultural land. However, in the instant case, the Court finds that earlier the land i.e. plot no.2573/1 though was entered as abadi, it was subsequently, by the order of the Consolidation Court, changed into agricultural land and, therefore, it can safely be said that there was no infringement of any provision of the U.P. Tenancy Act, 1939. 12. With regard to the third issue as to whether the disputed land was a land appurtenant to the house of the defendantappellant, though learned counsel for the appellant relied upon Harnam Singh vs. Bhikimbar Singh & Ors. reported in AIR 1980 Allahabad 50, the Court finds that this judgment would not be of any help to him as the defendant-appellant had tried to establish that the land appurtenant was plot no.2143/1 while here the land in question was plot no.2143 (later 2826/11). 13. Learned counsel for the respondents, however, stated that the substantial questions of law are not required to be dealt with as the appeal is concluded by findings of fact. 14. Under such circumstances, no substantial question of law arises for being answered in the instant Second Appeal. However, if the defendant-appellant is of the view that his plot no.2143/1 ought to be demarcated, then he shall always be at a liberty to get the plot no.2143/1 demarcated and identified. 15. The Court finds that there is no merit in this second appeal. It is, accordingly, dismissed.