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2022 DIGILAW 948 (ALL)

Radhe Shyam v. Shyama Charan

2022-06-10

J.J.MUNIR

body2022
JUDGMENT : J.J. MUNIR, J. 1. The plaintiff-respondents' suit for permanent prohibitory injunction seeking to restrain the defendant-appellants and the defendant-respondents 2 to 6 from interfering with the plaintiff's possession over the suit property denoted by letters EFGJ at the foot of the plaint, was dismissed by the Civil Judge (Junior Division), Powayan Shahjahanpur vide judgment and decree dated 30.08.2017. Upon the plaintiff's appeal, the learned Additional District Judge, Shahjahanpur has reversed the decree and decreed the suit vide judgment and decree dated 23.05.2022. 2. The case of the plaintiffs is that the suit property is appurtenant to their residential abadi and is used as their sehan, of which the closest English equivalent is a courtyard. A sehan, however, in rural India is slightly different from a courtyard. It is an open piece of land, just in front of one's house, utilized for diverse activities of life; virtually the closest equivalent of an open air living room, adjacent to one's house. 3. The plaintiffs' claim that the abadi that they live in, of which the suit property is an appurtenance, has come down to them from their ancestors. The existence of the plaintiffs' abadi abutting the suit property is not in dispute. The plaintiffs, therefore, claimed title and possession of the suit property as land appurtenant to their abadi, which they utilized as a sehan. 4. The defendants' case is that the suit property denoted by letters EFGJ belonged to their aunt (mausi), Dhoop Kali wife of Jag Mohan. She left the village for Gola, District Kheri about 35 years ago and still has her agricultural land in the village. She gave away or transferred the land comprising the suit property to the defendants' father before Dhoop Kali left. Since then, the defendants are in possession of the suit property, where they have their effects, customary to a rural way of life, described as a ghura, bhathia, tethers for animals and some feed for animals, described as bhuse. 5. The Trial Court framed the following issues (translated into English from Hindi): (1) Whether the plaintiffs are the owners in possession of the suit property EFGJ, situate in Village Sabha Fatehpur Bujurg, Tehsil Powayana? (2) Whether the suit is bad for non-joinder? (3) Whether the suit is undervalued and court-fee-paid insufficient? (4) Whether the suit is barred by Sections 34 and41 of the Specific Relief Act? (2) Whether the suit is bad for non-joinder? (3) Whether the suit is undervalued and court-fee-paid insufficient? (4) Whether the suit is barred by Sections 34 and41 of the Specific Relief Act? (5) Whether the plaintiffs are entitled to any other relief? 6. The plaintiffs in support of their case examined PW-1, Shyam Charan, PW-2 Kamlesh and PW-3, Ram Ladaite, who filed their affidavits in lieu of their examination-in-chief in the dock. No evidence was led on behalf of the defendant nos.7 to 11 to the suit. Contesting defendant nos.2 to 6 to the suit, who, as already said, are the appellants, examined DW-1, Devendra Kumar, DW-2, Shiv Ram and DW-3, Sundar Singh in support of their case, all of whom put in affidavits in lieu of their examination-in-chief. The defendant-appellants also filed a police report as the solitary documentary evidence through a list 24x bearing paper nos. 25x@1&25x@2 7. The Trial Court answered Issue No. 1 against the plaintiff-respondents and in favour of the defendant-appellants holding that the evidence to establish that the plaintiff-respondents were owners in possession of the suit property was insufficient. The Trial Court also remarked that the case of the plaintiffs based on an easementary right is untenable, because no one can claim an easementary right over land that he claims to be his own. The Trial Court, on the findings recorded, dismissed the suit. 8. Upon the plaintiff-respondents' appeal to the District Judge of Shahjahanpur, the learned District Judge vide his judgment and decree impugned has set aside the Trial Court's judgment and reversed the decree. 9. Aggrieved, the present appeal from the appellate decree decree has been preferred by the contesting defendants. 10. Heard Mr. Rama Shanker Mishra, learned Counsel for the defendant-appellants and Mr. Akhtar Ali, holding brief of Mr. Arun Kumar Gupta, learned Counsel appearing on behalf of the plaintiff-respondents. 11. It is submitted by the learned Counsel for the defendant-appellants that the impugned judgment is manifestly illegal, because the Lower Appellate Court has held in error that the land stands settled with the plaintiff-respondents under Section 9 of the U.P. Z.A. & L.R. Act. It is urged that no such right was pleaded by the plaintiffs for the relief claimed. It is also argued that the Lower Appellate Court has shifted the burden of proof upon the defendants committing a manifest error. It is urged that no such right was pleaded by the plaintiffs for the relief claimed. It is also argued that the Lower Appellate Court has shifted the burden of proof upon the defendants committing a manifest error. It is also argued that the Lower Court has set aside the judgment of the Trial Court without reversing specifically findings recorded in favour of the defendant-appellants by the Trial Court in breach of the provisions of Order XLI Rule 31 of the Code of Civil Procedure. 12. This Court has perused both the judgments carefully. The Lower Appellate Court has held that the suit property is undisputedly one that lies abutting the plaintiff-respondents' house. The Lower Appellate Court has opined that it lies in front of the plaintiff-respondents' house and is utilized as a sehan. It is appurtenant land. The defendant-appellants by contrast admits the fact that their house is located 200 meters away at another place. In this connection, the cross-examination of DW1, Devendra Kumar has been referred to by the Lower Appellate Court. Apparently, it is not a case where the defendant-appellants and the plaintiff-respondents, both claim the land to be their appurtenance or one that is next to their house. It is a land that is claimed by the plaintiff-respondents alone and proved to be indeed one that is abutting their house; not the defendants. The Lower Appellate Court on an overall assessment and a reasonable view of the evidence on record concluded that the land is appurtenant to the plaintiff-respondents' house. The land being located in a Gaon Sabha, it has been held to be one that would be settled with the plaintiff-respondents under Section 9 of the U.P. Z.A. & L.R. Act. The finding is not one that may be regarded as a third case. The plaintiff-respondents have claimed the suit property to be theirs as a sehan, which they use for the beneficial enjoyment of their property. The Lower Appellate Court has assigned a source of valid title to that right, after a meticulous examination of the evidence on record, regarding situation of the suit property vis-a-vis the plaintiff-respondents' abadi as also the defendant-appellants' right. 13. The Lower Appellate Court has assigned a source of valid title to that right, after a meticulous examination of the evidence on record, regarding situation of the suit property vis-a-vis the plaintiff-respondents' abadi as also the defendant-appellants' right. 13. It has also been opined by the Lower Appellate Court that the defendant-appellants' case that they have acquired title to the said property through an assignment made by its real owner, Smt. Dhoop Kali, is untenable for the reason that there is no registered conveyance in favour of the defendant-appellants' father executed by Dhoop Kali. It has been remarked by the Lower Appellate Court, and rightly so, that the defendant-appellants' father was not an heir of Dhoop Kali, from whom he could inherit. As such. She could not have just 'given him' the land comprising the suit property, as far as title goes, without a registered conveyance. This Court is of opinion that the Lower Appellate Court is right about the fact that Dhoop Kali could not have transferred title without a registered conveyance. The other important feature is that there is nothing on record to show that Dhoop Kali owned the suit property or she ever had possession of it. Assuming that Dhoop Kali had title and possession, without a conveyance she could transfer possession alone to the defendant-appellants' father, but that is not established by the evidence on record, as found by the Lower Appellate Court. Possession has been found for the plaintiff-respondents, where the suit property has been determined to be land appurtenant to the plaintiff-respondents' house. The defendant-appellants' possession, who reside 200 meters away, has not been found established by any cogent evidence, in the opinion of the Lower Appellate Court. Thus, assuming that title of the plaintiff-respondents is not proved, their possession of the suit property is clearly established. So far as the defendant-appellants are concerned, neither title nor possession has been established. Quite apart, this Court thinks that the finding based on Section 9 of the U.P. Z.A. & L.R. Act to infer title in favour of the plaintiff-respondents is also well-founded. 14. This Court also finds that the Lower Appellate Court has carefully set aside every finding recorded by the Trial Court before reversing the decree. That criticism of the impugned judgment by Mr. Rama Shanker Mishra is not at all borne out from the record. 14. This Court also finds that the Lower Appellate Court has carefully set aside every finding recorded by the Trial Court before reversing the decree. That criticism of the impugned judgment by Mr. Rama Shanker Mishra is not at all borne out from the record. The Lower Appellate Court has remarked that the Trial Court has said that no one can claim easement over land that is claimed to be his own is also misplaced. For this remark, the Lower Appellate Court has assigned the reason that the plaintiff-respondents have not claimed a right based on easement, but have merely said that if not granted an injunction, their easement would be violated, that the Lower Appellate Court says, does not mean that this is a right claimed on the basis of easement. This Court also thinks that the said pleading is to express a case that if the plaintiffs' land, that is to say, the suit property, which they utilize as their sehen, is taken away, they would be deprived of the wholesome and beneficial enjoyment of their property. The term 'easement' has been casually employed to express the idea of a beneficial use of the plaintiff-respondents' house. 15. In the opinion of this Court, no substantial question of law arises for consideration in this appeal. The appeal fails and is dismissed under Order XLI Rule 11 CPC.