Gyan Singh vs Laturi Singh And Ors.
2023 Latest Caselaw 36341 ALL

Allahabad High Court

Gyan Singh vs Laturi Singh And Ors. on 22 December, 2023

Author: Jayant Banerji

Bench: Jayant Banerji

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:242472
 
Reserved
 
Court No. - 1
 
Case :- SECOND APPEAL No. - 1185 of 1977
 
Appellant :- Gyan Singh
 
Respondent :- Laturi Singh And Ors.
 
Counsel for Appellant :- R.K.Dwivedi,Arun Kumar, M.C.Tiwari,R.S.Mishra
 
Counsel for Respondent :- Raghubir Singh,R.A.Verma,Rakesh Chandra Yadav,Sanjay Kumar Jain
 

 
Hon'ble Jayant Banerji,J.
 

1. This second appeal has been filed by the plaintiff-appellant against the judgment and decree passed by the District Judge, Mainpuri dated 22.3.1977, in Civil Appeal No. 308 of 1976 between Latoori Singh and others Vs. Gyan Singh and another.

2. The aforesaid second appeal was dismissed against the respondent no. 6 on 6.12.1989. Further, an application for additional evidence (Misc. Application No. 22502 of 1995) was filed which was neither referred nor pressed by the learned counsel for the appellant.

3. The second appeal was filed on 4.7.1977 and was admitted thereafter. The suit was filed by the plaintiff Gyan Singh seeking permanent injunction with regard to plot No. 14 shown in the plaint map with alphabets 'ABCD' restraining the defendants not to interfere in the possession of the plaintiff nor to make any construction thereon.

4. The plaint case was that the disputed land is part and parcel of the plaintiff's house as well as Sehan shown in the plaint map, for the past more than thirty years. On 15.2.1940, the plaintiff obtained a sale deed regarding the disputed land from one Sardar and obtained possession over the same and ever since, he has been in exclusive possession of the land but the defendants, who have no right or interest in the land, threatened to take forcible possession and to make construction thereon.

5. The defendant nos. 1 to 5 contested the suit, in which it was stated that the plaintiff had no right to sue and that he had no right or interest in the disputed land over which he had not been in possession within 12 years, that the plaintiff was not owner of the disputed land and it was never in his possession, the sale deed executed by Sardar could not confer any right on the plaintiff, that the defendants have been in possession of the land in dispute for over 12 years and the suit for permanent injunction is not maintainable. The defendant nos. 6 and 7 did not contest the suit and the same proceeded exparte against them.

6. The trial court framed the following issues:

"1. Whether the plaintiff is the owner in possession over the land in suit. If so, its effect?.

2. Whether the disputed land is the part of plaintiff's house or his sahan land?

3. Whether the Sardar has rightly executed the sale deed dated 15.2.40?

4. Whether defendants 1 to 5 have been in possession for more than 12 years and the suit is barred by time?

5. Whether the suit land and boundaries situated over the disputed land and the same belongs to the plaintiff?

6. To what relief if any is the plaintiff entitled?"

7. The trial court by its judgment and order dated 20.8.1976 decreed the suit of the plaintiff having found that the owner of the plot is the plaintiff and the sale deed dated 15.2.1940 executed in favour of the plaintiff was validly executed by Sardar.

8. In the defendants' first appeal, the point for determination framed was whether the plaintiff is owner in possession of the disputed land. The appellate court considered the evidence on record and found that there was no documentary evidence to show that Sardar was the owner of abadi plot no. 14 and that he was not competent to execute the sale deed dated 15.2.1940 in favour of the plaintiff. Paper no. 61Ga1/1 was considered which is extract of Khasra Batwara of village Baijnathpur, in which abadi plot no. 13 was recorded as "gonda" of Gangaram, Maharam, Ramphal and Ramju. The abadi plot nos. 14 and 16 were recorded houses of these persons. Abadi plot no. 15 was recorded as 'uftada' (pit or depression) and abadi plot no. 17 was recorded as 'Rasta'. The appellate court referred to paper no. 68-Ga-1, which is the copy of Abadi map, in which abadi plot no. 13 is shown towards the north of abadi plot no. 15 and abadi plot no. 14 lies towards east of abadi plot no. 13. The pedigree of the family of the parties, which was proved by the defendants was considered, from which, it appeared that the names of Ganga Ram and Maharam, the predecessors of defendant nos. 5, 6 and 1 and, Ramphal and Ramju, the predecessors of defendant nos. 2,3,4 and 7 were recorded over abadi plot no. 14. The appellate court found that the names of Tota Ram and Roop Ram, the predecessors of the plaintiff were not recorded. The name of Sardar was also not recorded.

9. The appellate court considered the sale deed (paper no. 11Ka1), in which the property transferred was described as 'ek qita makan khaam' towards east of the abadi plot no. 14. The dimension of houses were not given. The boundaries mentioned in the sale deed and the boundaries of the disputed land were considered and it was noted that there is no portion of plaintiff's house adjoining the disputed land towards west. It was noted that the boundaries given in the sale deed more appropriately relate to the land in suit as shown in the site plan at the foot of the plaint, rather the disputed land as shown in the commissioner's map in red ink. It was observed that there was no oral evidence to show that Sardar was the owner of the house.

10. The appellate court noted that the allegation of the plaint and the site plan map gave an impression that the plaintiff claims the disputed land because it adjoins his 'sahan' towards the north-east. It was noted that the passage had been shown towards east of the plaintiff's house and thereafter house of the defendants had been shown. The commissioner map (paper no. 20Ka/2) reflected that the disputed land did not adjoin plaintiff's sahan towards north-east, but it actually lies on the other side of the passage and not towards the west of the passage adjoining the plaintiff's house as shown in the site plan at the foot of the plaint. It was found that the disputed land actually adjoins the house of the defendants and is part and parcel of abadi plot no. 14 on which the "gonda" of their predecessors stood.

11. The appellate court found the oral evidence adduced by the plaintiff as extremely unsatisfactory. As PW-1, the plaintiff in his cross examination had claimed that he had seen the papers of batwara prior to obtaining the sale deed and there was the house of Sardar on the disputed land. He admitted that name of Sardar was not recorded in the papers of batwara. He could not tell if the names of Ganga Ram and others were recorded in the papers. He stated that he did not see the abadi papers prior to the filing of the suit as everything was decided in the litigation of the year 1935. Though, in his examination-in-chief, he has stated that abadi plot no. 14 belonged to Sardar. In his cross examination, he stated that Sardar was not the owner of the entire abadi plot no. 14. PW-1 could not coherently state the dimension of the land which he had purchased from Sardar. He stated that 'Kotha' of Sardar remained standing for about 30 years after the sale deed and fell down 3 or 4 years ago. He stated that his ancestral house was 5 or 6 paces from the house of Sardar, but later on he said that he had no ancestral house within 250 paces from the house of Sardar. He then stated in his testimony that house of Sardar actually belonged to him formerly, but his predecessors had sold it to Sardar and as such it had to be repurchased. He denied the existence of the 'nands' (cattle fodder pots) of defendant no.1, Laturi, infront of his house and stated that there is a 'rasta' which goes towards the east, but the commissioner's map showed that there are two 'nands' in the northern portion of the 'chabutra' of the defendant's house and two 'nands' towards the east of the disputed land.

12. The appellate court noted that PW-2 Matru Lal was the only other witness examined by the plaintiff in support of his version. In his testimony, the PW-2 stated that his visit to the site was 20 days prior to his evidence. He was a resident of Mainpuri town but had no cultivation in Baijnathpur and had no house there. He also admitted that he goes to Harchandpur, but direct passage for Harchandpur does not go via Baijnathpur. PW-2 stated that he and the plaintiff were both teachers in the schools of Nagar Palika and both of them have retired. The appellate court observed that PW-2 had no reliable knowledge regarding the disputed land or its possession and had come forwards to support the plaintiff's version on account of his association with him.

13. The testimony of DW-1 Bhojraj Singh and DW-2 Raghunath Singh were examined in rebuttal and their evidences showed that the defendants were owners and possession of the disputed land and the plaintiff had no right or interest therein. The appellate court noted that the trial court had been swayed by a particular contradiction in the testimony of DW-1. However, it was observed that the trial court had erred in accepting the contradiction in the statement in total disregard of other evidence of the witness.

14. With regard to the previous litigation, it was observed that Original Suit No. 95 of 1935 was filed by Reoti Ram, Gyan Singh and Gangaram against Sunder and Bachchan. Ganga Ram was the predecessor of defendant nos. 5 and 6. Gyan Singh and Reoti Ram were real brothers. The appellate court noted that that suit of 1935 related to abadi plot nos. 15 and 16 which lay towards south-west of the disputed land and was not in respect of the disputed land and it was held that the earlier litigation could not be of any help regarding the rights of the parties in respect of the disputed land. It was stated that reliance placed by the trial court on the statement of Sunder which was recorded in the earlier suit, could not be read in evidence as there was no evidence to show that Sunder had died. With regard to statement of Gur Dayal recorded in the earlier case, it was observed that mere statement given by Gur Dayal that Sardar lived in the room of disputed land on behalf of Shiv Dayal, could not make the Sardar owner of the disputed land. The trial court held that there is confusion in the plaintiff's mind regarding location of the disputed land and the evidence adduced by the plaintiff was highly unsatisfactory and he failed to prove his title or possession. The defendants' version found support from the documentary evidence and the plaintiff had failed to prove that Sardar was competent to execute the sale deed dated 5.2.1940. It was stated that plaintiff has failed to prove his possession and not a single witness of the village had come forward to support his version. The appeal was, accordingly, allowed, the judgment and decree passed by the trial court was set aside and the suit was dismissed with cost.

15. In the facts and circumstances of the case, the following substantial question of law arises:

"Whether the first appellate court has misread the evidence on record while allowing the appeal and dismissing the suit, which has resulted in failure of justice?."

16. Learned counsel for the appellant has stated that the first appellate court has misread the evidence, inasmuch as the plaint case is that the property in dispute is to the west of the road, but the appellate court refers that the disputed property is to the east of the passage. It has further been stated that the judgment rendered in the suit of 1935 reflects that Sardar's predecessor had purchased the entire land and, therefore, the title as declared in the suit of 1935 is binding in a subsequent suit. Learned counsel has referred to a judgment of the Supreme court in the case of Tirumala Tirupati Devasthanam Vs. KM Krishnaiah; reported in 1998 (32) ALR 740 in support of this contention.

17. As is evident from the record, the plaintiff-appellant filed a suit for permanent injunction for restraining the defendants from interfering in his possession over the area marked ABCD in the plaint map corresponding to plot no. 14 situated in Nagla Baijnathpur village Audainpadiya, Tehsil and District Mainpuri over which he claimed to be in possession on the basis of a sale deed dated 15.2.1940 executed in his favour by Sardar. It was stated in the plaint that the defendants are inimical to the plaintiff and are forcibly seeking to occupy the disputed land. In the plaint map, the disputed land ABCD is shown as quadrangle abutting the Sehan of the plaintiff. The boundaries of the disputed plot as reflected in the plaint are :

East- Road.

West- Plaintiff's sehan

North- Plaintiff's sehan (which was earlier a pit)

South- Plaintiff's sehan.

18. In the plaint map on the east side a straight road is shown stretching from south to north and on the east of which road, are shown houses of the defendants. The sale deed dated 15.2.1940, which was registered on 20.2.1940 and executed by Sardar son of Mahajeet, recites that he had purchased one house situated over abadi Munjumla plot no. 14 from one Ram Lal about 25 years ago over which he was in possession. It is further recited that he was constructing another house for which money was required and, therefore, he was selling the house to Chaudhary Gyan Singh son of Chaudhary Tota Ram for consideration. The boundaries of the house in the sale deed were:-

East- Road.

West- House Gyan Singh.

North- Pit, and

South- Road.

19. A written statement was filed on behalf of the defendant nos. 1 to 5, in which it was stated that the plot in dispute belonged to the defendants and they are in possession over the same since a long time. It was stated that no person by the name of Sardar had possession over plot no. 14 after its partition nor was he its owner and if the plaintiff has any sale deed in his favour, which is executed by Sardar, the same is not binding on the defendants and the document is void and ineffective. It was further stated that the plaintiff had no possession within 12 years over the plot in dispute and the plaint map is completely false.

20. In the suit, an advocate commissioner's report dated 26.2.1973 was filed alongwith a site map. The commissioner reported that the property in dispute was shown in red in the map in which there were two 'nands' and five 'khoonta' (pegs for tying cattle). The plot in dispute had a mound in the centre and sloped towards east and west which is till the blue dots. He has stated that thereafter, there was narrow lane, which lane was stated before the Commissioner to be a part of the disputed property. It was stated that thereafter there is 'chabutara' (platform) of the defendants. It was stated that the bricks were stacked along the red and blue dotted line on the map which extended to the sloping mound, which is the plot in dispute.

21. In the map appended to the commissioner report, the common road shown between house and sehan of the plaintiff is shown as curved at the north-east corner of the sehan of the plaintiff which road is passing over a part of the disputed property. In the map prepared by the Advocate commissioner, the disputed property is shown as bounded on East by chabutra of defendants and a common road; on West by open space which the plaintiff claims as his own; on North by common road and open space; and, on south by common road and chabutra of the defendants.

22. The plaintiff examined himself as PW-1 and PW-2 was one Matru Lal. PW-2 was not a resident of Baijnathpur.

23. The DW-1 was the defendant no.2 Bhojraj Singh and DW-2 Raghunath Singh who does not appear to be a defendant in the suit, but he was a resident of Baijnathpur.

24. The trial court referred the statement of one Sundar (paper no. 56C) made in suit No. 95 of 1935 that was filed by the father of the plaintiff, Tota Ram against Sunder and others, in which statement it was reflected that the aforesaid Sardar had a house over the property in dispute over which he was in possession. The trial court stated that DW-1 Bhojraj Singh, in his testimony has stated that there is a sale deed pertaining to the ownership of the disputed property which was not submitted before the court. The trial court observed that therefore, the defendants have withheld their best evidence and an adverse inference is required to be drawn under Section 114 of the Indian Evidence Act. It has been noted by the trial court that DW-1 has stated that after the chabutara (platform) of the plaintiff, the area encircled extends upto the 'bamba' (canal minor). It was further stated in testimony of DW-1 that the property in dispute is situated in that encircled open land. The trial court further note that it was stated by DW-1 that he did not know that who was the vendor of the sale deed executed in favour of his ancestor. It was further noted that DW-2, Raghunath Singh, had stated in his testimony that he had not seen any document relating to the ownership of the disputed property. It was stated that there were minor contradiction in the testimony of PW-1 and PW-2 which does not affect their case. It was, accordingly held that it is proved that the property in dispute was in the ownership and possession of the plaintiff and the sale deed dated 15.2.1940 was validly executed in favour of the plaintiff by Sardar. It was noted that on behalf of the defendants, it was not stated whether Sardar had any house other than the disputed property.

25. In the judgment of the appellate court, Paper No. 61Ga-1/1, which was the extract of 'Khasra batwara' of Village Baijnathpur was noted in which abadi plot nos. 14 and 16 were recorded as houses of Ganga Ram, Maharam, Ram Phal, Ram Joo. These persons were the predecessors of the defendant nos. 1 to 7.

26. The appellate court further noted that plot no. 68Ga1 which was the copy of the abadi map reflected that abadi plot no. 14 lay towards East of the abadi plot no. 13. The boundaries given in the sale deed of 15.2.1940 and the boundaries of the property in dispute, as reflected in the plaint, were considered and it was noted that there is no portion of the plaintiff's house adjoining the disputed land towards the West. The appellate court further noted the discrepant statements made by the PW1. When he stated that Sardar was not the owner of the entire abadi plot no. 14 whereas in the examination-in-chief he had said that abadi plot no. 14 belonged to Sardar. In the cross-examination, the PW1 had stated that he purchased only the Eastern portion of plot no. 14 from Sardar.

27. As far as the PW2- Mataru Singh is concerned, it was noted by the appellate court that he is resident of Mainpuri town and he had seen the site when he visited it 20 days prior to his evidence. He had no cultivation in Baijnathpur and has no house there. He was found to be an unreliable witness to depose about the possession over the land in dispute.

28. As far as the judgment in the suit of 1935 is concerned, the appellate court observed that it is related to abadi plot nos. 15 and 16 and was not in respect of the disputed land.

29. It is noted that neither of the parties had filed any suit seeking declaration of their title. The suit was one of injunction simplicitor based on possession and title was sought to be proved on basis of a purported sale deed executed by one Sardar in the year 1940 in favour of the plaintiff. Admittedly, the plot no. 14 is a minjumla land and a portion of the same was stated to have been purchased by the plaintiff. The Khasra batwara did not reflect the names of the predecessors of the plaintiff. On abadi plot nos. 14 and 16, the names of the predecessors of the defendants were recorded in the Khasra batwara. Pertinently, the boundaries mentioned in the sale deed of 1940 do not correspond to the boundaries mentioned in the plaint regarding the disputed property, or for that matter, to the boundaries reflected in the report of the Advocate Commissioner. So the appellate court is correct in its observations regarding the glaring discrepancy in the boundaries of the disputed property as reflected in the sale deed of 1940 and in the plaint map.

It is further noted that unlike what is stated in the plaint and reflected in the plaint map, in the map enclosed with the Advocate Commissioner's report, the passage which is shown to the east of sehan of the plaintiff has been marked by the Advocate Commissioner as existing over a part of the property in dispute. The property in dispute is abutting the 'chabutra' of the defendants. As such, the finding with regard to the discrepancy in the site plans noted by the appellate court deserves to be upheld.

30. As regards the suit of 1935, it has not been disputed by the learned counsel for the appellant that it pertained to abadi plot nos. 15 and 16 and not to abadi plot no. 14 which is reflected in the sale deed of 1940 as a minjumla plot. Further, the judgment of the trial court, the findings and observations of which has not been assailed by the learned counsel for the appellant, reflects that one of the documents which was sought to be relied by the trial court was a document 56C, which was the testimony of a witness in the Suit No. 95 of 1935, namely, Sundar.

31. With regard to the testimony of Sundar, it has been stated by the appellate court that there is no evidence to show that Sundar is dead and such evidence could not be read in evidence. Admittedly, the testimony of the Sundar that was sought to be relied upon by the trial court was made in a former suit in which neither of the parties to the present suit were parties. As such, such a testimony/statement would not be by itself a relevant fact given the provisions of Section 32 of the Evidence Act 1872. If the testimony of Sundar recorded in the suit of 1935 was sought to be demonstrated as a relevant fact, it had to be proved that either he had died or could not be found or had become incapable of giving evidence, or that his attendance could not be procured without an amount of delay or expense which, under the facts of the case appears to the court unreasonable. Therefore, the observation of the appellate court in this regard cannot be faulted.

32. It is to be noted that the term "minjumla number" means Shajra number denoting a component part of a field which has theoretically been partitioned but physically has not been partitioned1. It is, therefore, not known where in minjumla plot no. 14, the disputed property is alleged to be situated. As noticed earlier, the boundaries of the plot sold by means of the sale date of 1940 are markedly different from the boundaries reflected in the plaint map. The appellate court had noted that the P.W.2 was not a resident of Village Baijnathpur. It was noted that he saw 20 heads of cattle tied on the property in dispute when he had gone to Baijnathpur, but he made no enquiries as to whom the cattle belonged. This visit took place 20 days prior to his evidence and the P.W.2 had no cultivation in Baijnathpur neither had he a house there. The appellate court was justified in saying that P.W.2 had no reliable knowledge regarding the disputed land or its possession and had come forward to support the plaintiff's version on account of his association with him.

33. With regard to the testimony of P.W.1, it was found to be unsatisfactory by the appellate court as he had made a statement that Sardar was not the owner of the entire abadi plot no. 14 even though he had clearly said in his examination-in-chief that the abadi plot no. 14 belonged to Sardar. His statement regarding the dimensions of abadi plot no. 14 was found to be inconsistent. The P.W.1 had admitted that the dimensions of the disputed land were not given in the sale deed. The appellate court noted at one stage he stated that his ancestor's house was 5 to 6 paces from the house of the Sardar but later on he had said that he had no ancestor's house within 250 paces from the house of Sardar. The P.W.1 stated that the house of Sardar actually belonged to him previously but his predecessors had sold it to Sardar and as such, it has to be repurchased. He also said that the house was sold to Sardar in the year 1914-15 but he could not tell if any document was executed. The P.W.1 admitted that there is a history of litigation between him and the defendant no. 1 since the time of his ancestors.

34. As far as the testimony of the D.W.1 is concerned, the trial court had stated that in his testimony the D.W.1 had referred to a sale deed pertaining to the ownership of the property in dispute which was not submitted by him before the court and had drawn adverse inference for withholding his best evidence. The trial court had further stated that in his testimony, the D.W.1 had stated that away from chabutra of the plaintiff, the land encircled by him extends up to the bamba (canal minor) and that in that open land that was encircled, the property in dispute is situated and further he had stated that he did not know from whom his ancestors had got executed the sale deed regarding the property in dispute.

35. In my opinion, the trial court was incorrect in basing its findings on the fact that the defendant had withheld its so-called best evidence. The suit was for injunction on the basis of possession, the title of the property in dispute was sought to be established by the plaintiff on the basis of a sale deed of 1940, which admittedly pertained to minjunla plot no. 14. Further, just because the plaintiff had encircled an open plot of land that extended to canal minor, in which open land, the property in dispute was stated to be situated, by itself would not confer any benefit on the plaintiff for want of material on part of the plaintiff to demonstrate his ownership over the open land encircled by him. In this regard, no error has been committed by the appellate court in stating that the trial court has erred in accepting the statement in total disregard of the other evidence of that witness, which reflected that Sardar was never in possession of the disputed land. It was, therefore, found by the appellate court that the plaintiff had failed to prove that Sardar was competent to execute the sale deed and that the plaintiff had failed to prove his possession. It was noted that not a single witness of the village had come forward to support his version. The testimony of the D.W.2, who was a resident of Village Baijnathpur, clearly reflected that the defendants are the owners in possession of the disputed land and the plaintiff had no right or interest therein.

36. In view of the aforesaid facts and circumstances, I find that the first appellate court has not misread the evidence on record while allowing the appeal and dismissing the suit. The judgment of the first appellate court is justified. The substantial question of law is answered accordingly, and the appeal is dismissed.

Order Date :- 22.12.2023

sfa/A.V. Singh

(Jayant Banerji, J)