Nisar Ahmad vs Abdul Aziz
2019 Latest Caselaw 5445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 27.02.2019
 
Delivered on 03.07.2019
 

 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 1389 of 1980
 

 
Appellant :- Nisar Ahmad and another 
 
Respondent :- Abdul Aziz and others 
 
Counsel for Appellant :- Haji Iqbal Ahmad,Himanhsu Pandey,Ikram Ahmad,S.N. Pandey,Yogendra Kumar Srivastava
 
Counsel for Respondent :- A.N. Bhargava, Puneet Bhadauria
 

 
Hon'ble Sudhir Agarwal,J.

1. This is a plaintiff's appeal under Section 100 of Code of Civil Procedure (hereinafter referred to as "CPC") arising from judgment and decree dated 22.02.1980 passed by Sri Harish Chandra, District Judge, Etah in Civil Appeal No. 150 of 1977 which has been allowed by Lower Appellate Court (hereinafter referred to as "LAC") and judgment and decree dated 26.06.1977 passed by Sri Chottey Lal, Munsiff, Etah in Original Suit (hereinafter referred to as "OS") No. 281 of 1973 has been set aside and suit has been dismissed.

2. The appeal was admitted on following three substantial questions of law:-

"A) Whether disclosure of the evidence is essential in plaint and was Lower Appellate Court justified in observing that plaint did not contain source of title of plaintiff.

B) Whether Lower Appellate Court was justified in ignoring material documents and dismissing plaintiff's suit after misconstruing evidence.

C) Was the decree of Lower Appellate Court is illegal?"

3. Facts in brief, giving rise to the present dispute, are that plaintiffs, Nisar Ahmad and Siraj Ahmad, both real brothers and sons of Abdul Jamil, resident of Ganj Dundwara, Mohalla Mansoor Pargana Patiyali, District Etah, instituted OS No. 281 of 1973 in the Court of Munsiff, Etah impleading six defendants i.e. Abdul Aziz, Abdul Majid, Abdul Hafiz, Abdul Habib, Abdul Rashid and Abdul Bashir, all real brothers and sons of Abdul Kadir, seeking a prohibitory injunction against defendants so that they should not interfere in plaintiffs' possession over land, bearing plot no. 1209, area 36 decimal.

4. The case set up by plaintiff vide plaint dated 09.07.1973 is that disputed land was plaintiffs' father cultivatory holding and after his death, plaintiffs have succeeded the said land and are in exclusive possession thereof. Defendants have no claim, right or interest in the said land. Plaintiffs started digging foundation for raising a boundary wall on disputed land, boundary whereof are given at the bottom of the plaint. Defendants, however, forcibly and illegally are attempting to take possession of disputed land and creating obstruction in raising boundary wall. Plaintiffs repeatedly requested defendants to refrain from such interference but they have not paid any heed, hence, suit for injunction.

5. Defendants-1 to 3 i.e. Abdul Aziz, Abdul Mazid and Abdul Hafiz collectively filed written statement dated 07.09.1973. They denied claim of plaintiffs and stated that Arazi No. 1209 was in ownership of Akbar Shah and Asgar Shah who executed a sale-deed on 24.06.1949 in favour of Abdul Kadir and since then he and his successors are in possession of disputed property. Foundation was laid by defendants about 12 years back in 1962 and on the said old foundation, boundary wall was raised in June, 1973. Since aforesaid construction was raised by defendants without sanction of map by Nagar Palika, Ganjdundwara, hence, construction was stopped by Nagar Palika vide notice dated 22.06.1973 issued to defendants. Plaintiffs have no claim over said land and not entitled for any relief.

6. Replication dated 13.12.1973 was filed by plaintiffs stating that plaintiffs' father Abdul Jamil was a Shikmi Kashtkar on the disputed land and Revenue record had such entry. Subsequently converted the status to Sirdar. Alleged sale-deed dated 24.06.1949 is relied by defendants is void document and not binding on plaintiffs who are since long, owner in possession of disputed land. Alleged notice issued by Nagar Palika is a collusive act on the part of Nagar Palika and its officials. It cannot give any advantage to defendants. No construction was raised by defendants. It was also pleaded that plaintiffs are in possession over disputed land for the last more than 12 years and, therefore, have also matured their title by way of "adverse possession".

7. Trial Court formulated following five issues as under:-

"i. Whether plaintiffs are the owner in possession over the disputed land?

ii. Whether the suit is not maintainable on the ground mentioned in para-8 of W.S.?

iii. Whether the defendants are the owner in possession over the disputed land?

iv. To what relief, if any, the plaintiffs are entitled?

v. Whether suit is undervalued and Court fee paid is insufficient?"

8. In order to prove their claim, plaintiffs examined Abdul Sattar as PW-1, Abdul Gafoor as PW-2, Abdul Shakoor as PW-3, Nisar Ahmad as PW-4 and also placed certain documentary evidence including copies of Khasra Khatauni, Ext. A-1 and A-2 of the year 1366-F.

9. Defendants examined Sri Shafatullah as DW-1, Mohammad Washir Alam as DW-2, Abdul Aziz as DW-3 and documentary evidence including sale-deeds and copies of certain khataunies, vouchers showing purchase of construction material and notice of Nagar Palika.

10. Trial Court also got a spot inspection made through Court Amin who denoted disputed land in the map as ABFE. It was in two parts i.e. ABCD and CDEF. According to defendants, they were in possession as owner of land, denoted as ABCD, while land denoted by CDEF was left by defendants for plaintiffs. Relying on khasra entries placed by plaintiffs before Court below, it held that khasra entries are record of possession; plaintiffs were earlier in possession of disputed property as Shikmi and thereafter became Sirdar and ultimately matured their rights as bhumidar. Trial Court, therefore, answered issue-1 in favour of plaintiffs and issue-3 against defendants. Issue-2 was answered by Trial Court holding that defendants are not co-sharer in disputed property and, therefore, injunction can be granted. Consequently, Trial Court decreed suit and operative part of judgment reads as under:-

^^Okknh dk nkok va'kr% fMxzh djrs gq;s ;g LFkk;h fu"ks/kkKk tkjh dh tkrh gS fd izfroknhx.k vkjkth ua- 1209 ij lM+d ds iwohZ Hkkx esa mRrj rjQ fLFkr dfFkr nqdkjksa dks NksMdj 'ks"k vkjkth esa oknhx.k ds dCtk o n[ky esa gLr{ksi u djsaA izLrqr ifjfLFkfr;ksa esa [kpkZ eqdnek nskuksa i{k viuk viuk ogu djsaxsA mijksDr nqdkuksa okyh vkjkth dh ckcr nkok [kfjt fd;k tkrk gSA**

"By partially decreeing the suit of the plaintiff, the defendants through the order in the nature of permanent injunction are restrained that they, leaving the said shops constructed on the eastern side of the road towards the north of the araji no. 1209, are not to interfere in peaceful possession and occupation of the plaintiffs on the remaining part of the araji. In the present circumstances, both the parties will bear their respective costs. The suit regarding the araji with shops constructed thereon, stands rejected." (English translation by Court)

11. Defendants Abdul Aziz, Abdul Mazid and Abdul Hafiz preferred Civil No. 150 of 1977 impleading plaintiffs and remaining defendants as respondents. LAC also examined issues-1 and 3 of Trial Court as main, Points for determination, for deciding appeal. It held that plaint has not contained any averment showing source of title of plaintiffs. On the contrary, defendants set up their case founded on a sale-deed dated 24.06.1949. Averments contained in para-2 of written statement show that by sale-deed, land was purchased by parties jointly. Sale-deed (Ext. 61 A/2) was executed on 24.06.1949 by Akbar Shah and Asgar Shah, sons of Subrati Shah in favour of Abdul Kadir, son of Mohd. Yusuf; Nisar Ahmad and Siraj Ahmad sons of Abdul Jamil. Abdul Kadir was father of defendants while remaining two Transferees are plaintiffs themselves. Plaintiffs did not challenge identity as mentioned in sale-deed. This document thus clearly shows that land was purchased jointly by plaintiffs and father of defendants. Plots mentioned in the sale-deed are numbered 1209 J, 1209 A and 1209 K with respective area as 17, 6 and 13 decimals, total whereof comes to 36 decimals. This is a document which shows that plaintiffs and defendants are co-owners of land in dispute. The documents filed as khatauni extract of 1379 F show that name of Abdul Jamil Khan was struck off and names of Nisar Ahmad and Siraj Ahmad were recorded. Khasra extract of 1380 F, however, shows name of Abdul Jamil as Sirdar over 36 decimals of plot no. 1209. Then khasra extract 1379 F (Ext.-3) shows name of Abdul Jamil Khan being in possession of entire land. A khatauni extract of 1366 F (paper no. 62 C/1) was filed which mentioned name of Abdul Kadir, Nisar Ahmad, Siraj Ahmad in respect of disputed land. Similar was khatauni extract of 1349 F (Paper no. 86 C/1). LAC then considered oral evidence also and observed that it is true that in some Revenue record, only plaintiffs' names are mentioned but joint title comes from the sale-deed executed in June, 1949 and plaintiffs' have nowhere explained how they became sole owner of property in dispute, therefore, they have failed to establish their case justifying injunction. Consequently, LAC allowed appeal vide judgment dated 22.02.1980 and dismissed suit.

12. Learned counsel for appellant contended that once it is found that in subsequent Revenue entries, plaintiffs were shown in possession, LAC was not justified in dismissing suit and setting aside judgment of Trial Court since for the purpose of injunction only fact of possession was to be proved which was rightly proved by appellant.

13. In my view, the substantial questions of law need be answered against appellants and judgment of LAC need be upheld.

14. Record shows that sale-deed dated 24.06.1949 has been duly proved and there is no evidence adduced by plaintiffs to show that said document was void or illegal. Sale-deed clearly shows joint title of plaintiffs and father of defendants after whose death title was succeeded by defendants. Even if, it is treated to be correct that in khasra, Revenue entries of some period, plaintiffs were shown in possession but it does not mean that possession of other co-sharer stand excluded unless evidence has come on record that other co-sharer have lost their title and right to possession over the land in dispute. Khasra revenue entries are only evidence of possession and does not confer a title. In Narain Prasad Agarwal Vs. State of Madhya Pradesh 2007 (8) SCALE 250, Court has said:

"Record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt that such a presumption is rebuttable."

15. In Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and others AIR 2008 SC 901, the Court said:

"A revenue record is a not a document of title. It merely raises a presumption in regard to the possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Indian Evidence Act."

16. Mere entries in revenue record are not conclusive proof of actual physical possession of the person whose name is entered therein as held in Corea Vs. Appu Hamy Corea Vs. Appu Hamy 1912 Appeal Cases 230; Thakur Nirman Singh and others Vs. Thakur Lal Rudra Pratap Narain Singh and others AIR 1926 P.C. 100; Smt. Sawarni Vs Smt. Inder Kaur and others JT 1996 (7) SC 580; State of U.P. Vs. Amar Singh and others (1997) 1 SCC 734; Balwant Singh and another Vs. Daulat Singh and others JT 1997 (5) SC 703; Suman Verma Vs. Union of India and others (2004) 12 SCC 58; State of Madhya Pradesh Vs. Narmada Bachao Andolan and another (2011) 7 SCC 639: Municipal Corporation vs. Puran Singh, (2015)5 SCC 725 Prem Nath Khanna and others vs. Narinder Nath Kapoor and others, (2016) 12 SCC 235; and, Jagdish Prasad Patel (Dead) thr. L. Rs. and others vs. Shivnath and others, 2019(6) SCALE 151.

17. It is in these circumstances, whenever a dispute of title arises, Court has to look into relevant and credible evidence, appreciate the same and thereafter decide the issue of title.

18. The evidence on record show that defendants are true owners or true co-owners. No injunction can be granted against such true owners or true co-owners of the land. It is also settled law that injunction cannot be granted restraining a co-owner from taking possession. A Division Bench of this Court in First Appeal From Order No. 946 of 2007 (Alka Tibrawala Vs. Devendra Bagla and others) decided on 22.12.2015 has held as under:

"3. Admittedly, both the parties are co-owners in the property in dispute. In law a co-owner is supposed to be owner in possession of every part of property unless and until it is shown that there is division amongst the co-owner by metes and bounds. Further, a co-owner is always entitled to transfer his share as undivided property or if property is validly partitioned or divided by metes and bounds that specific part of property.

4. In the present case, suit for share and partition is pending, hence kind of injunction sought by co-owner, in our view, could not have been granted by court below. It has rightly rejected application of plaintiff-appellant seeking ad interim injunction under Order XIL Rule 1 CPC."

19. The judgment of LAC is clearly founded on document of title which could not be contradicted by plaintiffs. Once a valid title document is there to demonstrate title of parties, mere possession cannot override superior ownership rights flowing from title documents. Therefore, I do not find that Court below in any manner has erred in law in reversing the findings of Trial Court. All the three questions, therefore, are answered against appellants.

20. Appeal lacks merit and is accordingly dismissed.

Order Date :-03.07.2019

AK