Ram Bhool & Another vs Bhudev Prasad & Another
2013 Latest Caselaw 4487 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 

 
Case :- SECOND APPEAL No. - 996 of 2005
 

 
Appellant :- Ram Bhool & Another
 
Respondent :- Bhudev Prasad & Another
 
Counsel for Appellant :- A.K. Gupta, A.K. Mishra
 
Counsel for Respondent :- Amit Kaushik, Anil Kaushik, M.P. Sinha,Vinod Sinha
 

 
Hon'ble Manoj Misra, J.

This matter has come before this Court on transfer. The order sheet reveals that after calling for the record of the court below, the matter was heard at length by another bench and, thereafter, it was released by order dated 22.1.2013. Both the learned counsel have agreed that as the record of the court below is available, the matter be finally heard and decided even though the appeal has been listed under Order 41 Rule 11 CPC.

Heard learned counsel for the parties and perused the record.

This is a plaintiffs second appeal against the judgment and decree dated 20.09.2005 passed by the Additional District Judge, Court No.3, Bulandshahr in Civil Appeal No.96 of 2005, whereby the judgment and decree passed by the trial court in Original Suit No.78 of 2001 has been set aside and the plaintiffs' suit has been dismissed.

Original Suit No.78 of 2001 was instituted by the appellants for permanent prohibitory injunction restraining the respondents from interfering with the possession of the plaintiffs over a piece of land shown by letters Aa, Ba, Sa, Da in the plaint map.

The plaint case is that the village Abadi has been in existence over plot nos.1530, 1532 and 1529 since prior to the abolition of zamindari and, therefore, by operation of law the housing site stood vested in the house owners under section 9 of the U.P. Zamindari & Land Reforms Act (hereinafter referred to as UP ZA & LR Act). It is the case of the plaintiffs that their ancestral house stood over plot no.1532 which has since been destroyed leaving a boundary wall and a door, which still remains and shown in the plaint map as Aa, Ba, Ya, Ra. It is claimed that the plaintiffs have been using the same as their "Gher" for tying cattle and keeping cart, etc. It is the case of the plaintiffs that as their residential portion stood destroyed with the passage of time, the plaintiff no.2 (Sunehari Devi) purchased 7 biswa, 18 biswansi of plot no.1534, which is contiguous to plot no.1532, from Smt. Nanhi Devi, vide sale-deed dated 12.10.1973, and built house over plot no.1529 as also over a portion of plot no.1534, whereas the remaining land in front of the house remains vacant for use as "Sehan" as well as for business during "Navratri". It is further the case of the plaintiffs that on 01.06.1999 a notice was issued to them by a three member committee of the Gaon Sabha requiring the plaintiffs to remove their alleged illegal possession from over plot no.1532 by claiming the same to be a Gaon Sabha property. It is their case that a reply was given to the said notice but, thereafter, no action was taken pursuant to the notice. It has further been alleged that the defendants got a fictitious sale-deed executed in their favour from one Mahaveer Prasad without disclosing plot number and by disclosing incorrect boundaries. It has been alleged that the defendants were seeking to illegally demolish the boundary wall and get possession of the disputed land, hence, the suit.

The defendants contested the suit by filing written statement thereby denying the ownership and possession of the plaintiffs. It was claimed that the boundaries of the disputed land were incorrectly stated in the plaint. The defendants claimed title and possession over the disputed land under a sale-deed dated 13.11.1999 executed by Mahaveer Prasad son of late Babu Ram. It was claimed that the disputed land was the ancestral property of Mahaveer Prasad, which he obtained in partition from his brothers. It was alleged that in respect of the disputed land there was an Original Suit No.979 of 1997: Raghuveer Prasad versus Mahaveer Prasad, in which Mahaveer Prasad was declared owner. It has also been stated that the plaintiffs had applied for impleadment in the said suit, which was rejected. It was claimed that the alleged notice of the Gaon Sabha requiring the plaintiffs to remove their possession from over the disputed land was forged and fabricated. In support of their case the defendants filed the original of the sale deed executed by Mahaveer Prasad, certified copy of the judgment rendered in O.S. No.979 of 1997 as also certified copy of the order sheet in O.S. No.979 of 1997.

The trial court framed various issues. It also obtained a report from an Advocate Commissioner (Paper No.18-Ga) as well as a Survey Report (Paper No.80-Ga). The Advocate Commissioner's Report was confirmed subject to the evidence of the parties whereas the Survey Report was not treated to be a survey report and was rather treated as a spot inspection report, vide order dated 12.5.2004, as noted in the trial court's judgment.

The trial court accepted spot position as given in the Advocate Commissioner's report and found that site plan given in the said report tallied with the plaint map. It found that the boundaries of the subject matter of sale, set up by the defendant, did not tally with the boundaries of the disputed land as shown in the plaint and in the Advocate Commissioner's report. Accordingly, it concluded that the defendants did not derive title over the disputed land through the sale deed executed by Mahaveer Prasad. It observed that from the judgment rendered in O.S. No.979 of 1997 it cannot be found that the land in that suit was identical with the suit property in the instant suit. It also observed that the judgment does not bind the plaintiffs as they were not party to the said suit. The trial court also came to the conclusion that the land in suit related to plot no.1532. However, the trial court concluded that the benefit of Section 9 of the U.P. ZA & LR Act cannot be provided to the plaintiffs as they failed to prove that they or their ancestors had been in possession since on or before 01.07.1952 i.e. the date of vesting. The benefit of Section 9 was denied on the ground that the plaintiffs had not brought on record Khasra of 1359 F i.e. the year of vesting. The trial court, however, on the basis of the Advocate Commissioner's report (Paper No.18-Ga), which disclosed that plaintiffs' cattle and cart were on spot at the time of inspection, found the plaintiffs to be in possession and decreed the suit by holding that since the plaintiffs had been able to prove their possession whereas the defendants could not prove better title over the land in suit, therefore, the plaintiffs were entitled for injunction against the defendants.

Aggrieved by the judgment and decree passed by the trial court the defendant-respondents preferred appeal. The appellate court allowed the appeal, set aside the judgment and decree passed by the trial court and dismissed the plaintiffs' suit. While allowing the appeal, the appellate court affirmed the finding recorded by the trial court on the issue that the plaintiffs were not entitled to the benefit of Section 9 of the U.P. Z.A. & L.R. Act and it also noted that the plaintiffs had not preferred any cross objection to the said finding recorded by the trial court.

The appellate court found that the boundaries of the disputed land "Aa, Ba, Sa, Da", as disclosed at the bottom of the plaint, did not match with the boundaries of the property shown by letters Aa, Ba, Sa, Da in the map appended to the plaint. It observed that the boundaries mentioned at the foot of the plaint matched with the boundaries of the property shown by letters Aa, Ba, Ya, Ra in the plaint map. The appellate court thus concluded that even the relief sought in the plaint was vague.

The appellate court further found that in absence of a proper survey report, and in absence of any effort on the part of the plaintiffs to obtain a proper survey report, there was no basis to conclude that the land in dispute was located over plot no.1532. It also found that no documentary evidence was brought by the plaintiffs that they or their ancestors were ever recorded over plot no.1532.

The appellate court examined the evidence of the parties in detail. After considering the site plan, the judgment of suit no.979 of 1997 and the oral deposition of P.W.1, where, in cross examination, he stated that he was the owner of some portion of plot no.1532 while Rakesh, Jagdish, Indra Kumar and Kallu were owners of remaining portion, concluded that the property which was sold by Mahaveer Prasad in favour of the defendants is the same property which has been shown in the site plan filed along with the additional written statement. The appellate court after considering the oral deposition of PW1 discarded the site plan annexed with the plaint by holding that in the plaint map it was wrongly shown that the "chak road" terminates at the northern boundary of the disputed property when, in fact, from the statement of PW1, at page no.5, it was established that chak road (Khasra No.1530) joins the public "Rasta" lying towards the south of the disputed property. The appellate court further observed that in absence of clear and cogent finding as to since when the plaintiffs had been in possession, particularly, when their claim of possession since the time of their ancestors, prior to abolition of zamindari, has been discarded, the finding with regards to their possession was unsustainable, more so when both sides claimed possession, and the plaint case, as set up, was not established. The appellate court after taking into consideration the entire evidence on record held that the plaintiffs miserably failed to establish their title and possession over the disputed property and, accordingly, allowed the appeal and dismissed the suit of the plaintiffs.

Challenging the judgment and decree passed by the lower appellate court, the learned counsel for the plaintiff-appellants submitted that the lower court ought not to have drawn an adverse inference against the plaintiff-appellants for not filing Khasra of 1359 F when, in fact, the trial court had decided the suit on the basis of possession. It has also been submitted that if there had been no proper survey commission report on record, then it was the duty of the court below to have called for a fresh survey commission and the plaintiffs' suit ought not to have been dismissed on that ground. It was further submitted that the court below could not have relied on the judgment rendered in Suit No.979 of 1997, particularly, when the plaintiffs were not party to that suit. On the basis of the aforesaid submissions, the learned counsel for the appellants submitted that the substantial questions of law, as framed in the memorandum of appeal, arise for adjudication in this appeal, which are being reproduced herein below:-

"1. Whether the Lower Appellate Court erred in observing to draw an adverse inference under Section 14 (g) (should be read as 114(g)) of Evidence Act as the plaintiffs had not filed Khasra of 1359 Fasli which was beyond the pleadings of the parties?

2. Whether, if according to the Lower Appellate Court, Survey Commission was must to fix the location of the land then it was the duty of the Lower Appellate Court to issue Survey Commission?

3. Whether the Lower Appellate Court erred in relying on any finding or evidence given in Suit No.979 of 1997 in which the present plaintiffs were not the parties and the said judgment was not admissible in evidence?

4. Whether the suit being filed against the private respondent for injunction on the basis of long continuous possession was maintainable irrespective of the fact, whether benefit of Section 9 of the Act was available or not?"

Per Contra, the learned counsel for the defendant respondents supported the judgment of the lower appellate court and submitted that as the lower appellate court has considered the entire evidence in detail and has, thereafter, recorded its finding that the plaintiffs have failed to prove their title and possession, the appeal was rightly allowed and suit was rightly dismissed. It has been also submitted that the question of title and possession are questions of fact, which have been decided by appreciation of evidence on record, with proper reasons, which cannot be said to be perverse, therefore the second appellate court cannot interfere with the same.

Having considered the submissions of the learned counsel for the parties, this Court proposes to deal with each of the questions framed in the memorandum of appeal separately.

QUESTION No.1

Amongst various issues framed by the trial court, issue no.2, framed by the trial court, was: "whether the plaintiffs were entitled to the benefit of section 9 of the UP ZA & LR Act." In paragraph 1 of the plaint it was stated that the village abadi stood over plot nos.1530, 1532 and 1529 and the housing sites, therefore, vested with the house owners under section 9 of the UP ZA & LR Act on abolition of zamindari. In paragraph no.2 of the plaint it was pleaded that the plaintiffs' ancestral house was over plot no.1532, which stood destroyed over passage of time, with remnants of boundary wall there. In paragraph no.2 itself, by way of amendment in the plaint, it was stated that the disputed land shown by letters Aa, Ba, Sa, Da stood over plot no.1532. Accordingly, the issue whether the plaintiffs were entitled to the benefit of section 9 of the UP ZA & LR Act very much arose from the pleadings of the parties and, therefore, both the courts below, in absence of Khasra entry of the year 1359 F (the year of vesting), were justified in holding that the plaintiffs failed to prove their possession since on or before the date of vesting so as to enable them to set up a claim that the housing site or the land appurtenant thereto vested in them under section 9 of the UP ZA & LR Act. Further, this Court finds that the land in dispute was not claimed as a land appurtenant to the existing house of the plaintiffs, therefore, to prove title and possession over the land in suit, the Khasra record of the year 1359F was necessary. Hence, no fault can be found if any adverse inference was drawn by the court below for non production of Khasra of 1359F.

QUESTION No.2

The submission of the learned counsel for the appellants that the appellate court ought to have called for a proper survey commission report to fix the location of the land does not appeal to the Court, inasmuch as, PW1, Rambhool Singh, in his cross examination stated, as noted in appellate court judgment, that his name is not recorded in Khasra and Khatauni of plot No.1532, even the name of his father, grandfather or any other member of the family was not recorded. This observation of the court below has not been challenged as being factually incorrect. Moreover, on perusal of the record of the trial court, the Court finds that in his cross examination PW1 stated that plot no.1532 is a new number allotted after consolidation, but he does not know the old number. Therefore, even if it is found that the land in suit is located over plot no.1532, it would not be of any help to the plaintiffs, as they failed to produce any record with regards to their ownership and possession of plot no.1532. Thus, in my view, the question no.2 does not arise for consideration in the appeal.

QUESTION No.3

The submission of the learned counsel for the appellant is that the court below wrongly placed reliance on the judgment in Original Suit No.979 of 1997, which was inadmissible in evidence, being not inter partes. No doubt, a judgment not inter partes would not be binding on a non party, but it would be still be relevant under section 13 of the Evidence Act. In the case of Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, (1998) 3 SCC 331, the apex court observed as follows:

"8. It was argued by the learned counsel for the plaintiff-respondent that the earlier judgment in OS No. 51 of 1937 dated 15-6-1942 was rendered in favour of the TTD against Hathiramji Mutt, that the plaintiff was not a party to that suit and hence any finding as to TTD's title given therein is not admissible as evidence against the present plaintiff in this suit.

9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishnarao Kango v. Narayan Devji Kango speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter partes is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram held that a previous judgment not inter partes, was admissible in evidence under Section 13 of the Evidence Act as a "transaction" in which a right to property was "asserted" and "recognised". In fact, much earlier, Lord Lindley held in the Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani (ILR at p. 198) that a previous judgment, not inter partes was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinomoni v. Brojo Mohini and Ram Ranjan Chakerbati v. Ram Narain Singh by Sir John Woodroffe in his Commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sundar Mal."

In the instant case, the lower court has considered the judgment rendered in O.S. No.979 of 1997 for collateral purpose so as to ascertain whether the property in dispute in the present suit was the same property which was the subject matter of dispute in that suit wherein Mahaveer Prasad Sharma, the vendor of the sale deed which has been set up by the defendants in this suit, was a party. Therefore, in the light of the judgment of the apex court, such consideration by the court below was in no way illegal. The question no.3 is answered accordingly.

QUESTION No.4

In so far as the question no.4 is concerned, there can be no dispute to the settled position in law that a person in settled possession can defend his possession against the whole world except the true owner. Therefore, even if the plaintiffs were not found to have gained ownership right by virtue of vesting under section 9 of the UP ZA & LR Act, they could have maintained their claim on the basis of their possession. But the aforesaid position is of no avail to the plaintiffs. The appellate court has recorded a categorical finding that the plaintiffs have miserably failed to establish their title as well as possession over the suit property. Although no substantial question of law has been proposed in the memorandum of appeal with regards to the correctness of the finding recorded by the lower appellate court on this issue, but the learned counsel for the appellants, by placing reliance on the Advocate Commissioner's report, submitted that as the Advocate Commissioner found the plaintiffs' cattle and cart over the disputed land during inspection of the suit property, therefore, the lower appellate court was not justified in reversing the finding of the trial court with regards to possession of the plaintiffs.

The record reveals that to the report of the Advocate Commissioner an objection (paper No.31 C) was filed by the defendants claiming that on spot it was the defendants' cattle, cart, etc. that were there, which the Advocate Commissioner wrongly reported to be that of the plaintiffs. It is undisputed that the report of the Advocate Commissioner was confirmed subject to the evidence of the parties. The appellate court, therefore, took pains to consider the entire oral and documentary evidence. It minutely examined the site plan/map and tested them with the oral evidence and has thereafter recorded its finding that the plaintiffs failed to prove their title as well as possession.

On a careful perusal of the judgment of the lower appellate court the Court finds that the appellate court discarded the plaint map as well as the plaint description of the disputed land, by taking notice of the statement of P.W.1 as also the discrepancy between the boundaries mentioned at the foot of the plaint with the boundaries given in the site plan annexed with the plaint. A careful perusal of the lower court record reveals that in the site plan annexed with the plaint, part of the northern boundary of the disputed land shown by letters Aa, Ba, Sa, Da is bounded by house of Anil Kumar, the other part of the northern boundary is shown to be bounded by Chak Marg 1530 and the remaining part of the northern boundary is shown to be bounded by plot no.1534. In the plaint as well as the site plan appended thereto, the southern boundary of the disputed land is shown as the Public Rasta. Thus according to the plaint map, between the Chak Marg-1530 in the north and the public Rasta in the south, there was a portion of the disputed land. In other words, as per the site plan appended to the plaint, the Chak Marg-1530 terminates on the northern boundary of the disputed land. However, from the statement of P.W.1, at page no.5 of his statement, during cross examination, it appears that the Chak Marg-1530, as shown in the plaint, joins the public Rasta. This statement amply proves that it was wrongly shown in the plaint map that the Chak Marg-1530 terminated at the northern border of the disputed property. Further, at the foot of the plaint, the northern boundary of the disputed "Gher", which as per the amended paragraph no.8 of the plaint has been shown by letters by Aa, Ba, Sa, Da in the plaint map, is the house of Anil Kumar, without any reference to the other parts which appear on the plaint map. Thus, I am of the view that the exact location of the disputed property, as described in the plaint, was not proved by the evidence brought on record.

Even otherwise, once the plaintiffs have failed to establish their title to the disputed land, by mere presence of cattle or cart, without there being any tenement built on it and in their occupation, it is very difficult to hold that the plaintiffs are in possession, particularly, when their plea that they (which includes their ancestors) had been in possession since before the abolition of zamindari has been disbelieved and further, when there was no cogent evidence to show as to since when they had been otherwise in possession. In the case of Turab Ghosi versus Smt. Laxmi Agarwal and another (1984 All. C.J. 107), this court in paragraph no.9 of its judgment observed: "Now, if a person cannot even plead consistently or establish the period of time since when he is in occupation of a premises, it will be very difficult to hold in law that he has established his possession over the property. Mere "occupation" is not possession, although every actual physical possession is occupation. Possession is a legal concept and one of the ingredients which is essential to it is the specification of actual period of time when an act of possession, as possession, commenced--not merely as an act of occupation." This Court is in complete agreement with the principle laid above.

In the instant case, the court below after examining all the relevant aspects recorded its finding as follows:

"In this view of the matter I find that the respondents/ plaintiffs miserably failed to establish their title and possession over the disputed property. The learned Trial Court has not given a categorical finding that since when the respondents/ plaintiffs are in possession and the findings given in this respect are quite vague........When both the parties were asserting their possession over the property in dispute then it was for the respondents/ plaintiffs to prove their possession by cogent evidence..........The upshot of the above discussion leads to the irresistible conclusion that the respondents/ plaintiffs are not found to be owners in possession of the disputed property and therefore their suit ought to have been dismissed by the learned Trial Court."

The above finding of the lower appellate court has been arrived at after considering several parameters. It not only took notice of the fact that the plaintiffs failed to prove their case that the disputed land stood vested in them under section 9 of the UP ZA & LR Act but also that their oral testimony was at variance with the description of the suit property, as described in the plaint map. It further noticed that the plaint map was at variance with the description of boundaries of the disputed property given at the bottom of the plaint. In the light of all these weaknesses in the plaintiffs' case it observed that the plaintiffs must succeed on the strength of their own case and if they have failed to prove their case as pleaded, the suit must fail. I do not find any perversity in its reasoning or any legal error in appreciation of evidence. More so, when it is not the case that any admissible evidence has been ignored or any inadmissible evidence has been relied by the lower appellate court while recording its finding. It is also not the case of the appellants that any evidence was misread. Even otherwise, no question of law, much less a substantial question of law, has been drawn in the memorandum of appeal assailing that finding. In such a situation, there is very little scope to interfere with the finding of fact recorded by the lower appellate court.

It is now well settled that the first appellate court is the final court of fact and can on reassessment of evidence record its own finding (vide Gurvachan Kaur v. Salikram, (2010) 15 SCC 530; Krishnan v. Backiam (2007) 12 SCC 190; Santosh Hazari v. Purshottam Tiwari (2001) 3 SCC 179). Ordinarily a second appellate court can interfere with a finding of fact recorded by the court below if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse or if the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings or if the findings are either ipse dixit of the Court or based on conjecture and surmises (vide Municipal Committee, Hoshiarpur v. Punjab SEB, (2010) 13 SCC 216). Further, in the case of Arumugham v. Sundarambal, (1999) 4 SCC 350, the apex court observed that the second appellate court cannot interfere with the findings of the lower appellate court merely because the first appellate court had not come to close grips with the reasoning of the trial court. It would be useful to reproduce paragraph 14 of the judgment, which reads as follows:-

"From the aforesaid judgment of the three-Judge Bench in Ramachandra Ayyar case it is clear that this Court held that the second appellate court cannot interfere with the judgment of the first appellate court on the ground that the first appellate court had not come to close grips with the reasoning of the trial court. It is open to the first appellate court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence on one side or rejecting the evidence on the other side. It is not permissible for the second appellate court to interfere with such findings of the first appellate court only on the ground that the first appellate court had not come to grips with the reasoning given by the appellate trial court. The aforesaid judgment of this Court in Ramachandra Ayyar case specifically distinguished Rani Hemanta Kumari Debi v. Maharaja Jagadindra Nath Roy Bahadur rendered by the Privy Council on the ground that that was a case wherein the High Court was dealing with a first appeal. The observations made by the Privy Council in that context would not be applicable to cases where the second appellate court was dealing with the correctness of the judgment of the first appellate court which reversed the trial court."

In view of the law noticed herein above, therefore, once a finding of fact that the plaintiffs have failed to prove their possession and title over the disputed land has been recorded, after dealing with the entire evidence on record and, in this case, also after appreciating the reasoning recorded by the trial court, there is no scope to interfere with the said finding in exercise of power under section 100 of the Code of Civil Procedure, particularly, when no substantial question of law has been raised challenging the said finding. For the reasons recorded above, the appeal lacks merit and is, accordingly, dismissed. No costs.

Order Date :- 24.7.2013

AKShukla/-