Sundar Lal vs Babadin And Others
2023 Latest Caselaw 8493 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 20
 

 
Case :- SECOND APPEAL No. - 734 of 1983
 

 
Appellant :- Sundar Lal
 
Respondent :- Babadin And Others
 
Counsel for Appellant :- H.S.Sahai,U.S.Sahai,Uma Shankar Sahai
 
Counsel for Respondent :- S.Mirza,Himanshu Pandey,Mohan Singh
 

 
Hon'ble Jaspreet Singh,J.

Heard learned counsel for the appellant. Sri Himanshu Pandey, learned counsel for the respondent has sent an illness slip.

Considering the fact that the appeal is of the year 1983 and the matter has been pending since long ago, accordingly, the Court has proceeded to hear the learned counsel for the appellant.

The instant second appeal arises out of concurrent judgments and decree passed by the Court of Munsif, Uttraula at Gonda dated 31st October, 1983 whereby Regular Suit No. 55 of 1980 was dismissed against which the plaintiff-appellant preferred a Regular Civil Appeal under Section 96 C.P.C. which also came to be dismissed by means of judgment and decree dated 23.07.1983 passed by the 7th Additional District Judge, Gonda in Appeal No. 12 of 1982.

Being aggrieved against the aforesaid concurrent judgment and decree, the instant second appeal was preferred and by means of order dated 31.10.1983 it was admitted on the following two substantial questions of law which read as under:-

"(6) Whether the courts below in not taking into account the statement of defendant-respondent Baba Din who clearly admitted in his statement that the house which was purchased by him from Ram Sumiran was only 50x55 Haath (75'x82') could not cover the entire land and also admitted the fact that Khandahal was found towards south of the land in dispute by the commissioner indicating the existence of the house of Ram Sumiran not on the land in dispute but towards south of the land, the findings recorded by the courts below stand vitiated?

(7) Whether the courts below in not recording any finding with respect to the possession of either party over the land in dispute on the date of vesting and also in not taking into account the fact that the plaintiff having no other sehan land while the defendant had no sehan land towards the north of his house, the findings recorded by the courts below stand vitiated?

The facts giving rise to the instant second appeal are being noticed hereinafter:-

The original plaintiff Sri Sunder Lal filed a suit for permanent injunction in the Court of Munsif, Uttraula at Gonda against Ram Gulam, Baba Deen and Ram Sehaj over the defendants with the averment that the plaintiff was in a possession of the land shown by Letters A, B, C and D since the time of his ancestors. It was also pleaded that the land was adjacent to the house of the plaintiff and his exit was on the western side which opened in the Abadi on the western side which was also utilized by the plaintiff for beneficial purposes of tying his domestic animals and other sundry use.

It was also urged that a thatched structure was also made by the plaintiff over the said land and he is in exclusive possession thereon. Since the defendants were attempting to disturb the possession and had collected bricks and construction material for the purposes of raising a house. In the aforesaid circumstances, the plaintiff instituted the suit for permanent injunction.

The defendants filed their written statement wherein they denied the claim of the plaintiff and further stated that the disputed land was not identifiable. It was also pleaded that the plaintiff was not in possession and that the disputed land belonged to Ram Sumiran who had his house over the said land with the passage of time had become dilapidated and had fallen. The said land was sold by Ram Sumiran to the defendants who are its owners and in possession and prior to the defendants, Ram Sumiran was the owner in possession.

It was also pleaded that the alleged averment in the plaint that the plaintiff has been in long possession is also not correct as prior to the institution of the suit, the plaintiff had opened a door and it is the plaintiff who is trying to encroach upon the land belonging to the defendant.

Upon the pleadings of the parties, the Trial Court framed six issues, however, three issues were mainly contested between the parties.

(i) Whether the plaintiff is the owner in possession of the disputed property;

(ii) Whether the defendants are the owners of the disputed property; and

(iii) Whether the plaintiff is not in possession of the dispute property and as such his suit is not maintainable;

In order to prove his case, the plaintiff examined himself as P.W.1 whereas Bhagwan Deen was examined as P.W. 2 and Sri Nisar Ahmad, Advocate was a private commissioner appointed by the plaintiff was examined as P.W.3. On behalf of the defendant, Sri Baba Deen examined himself as D.W.1 and Sri Mata Badal was examined as D.W. 2.

Considering the evidence available on record, the Trial Court recorded a finding while dealing with issue no. (i) that the plaintiff had admitted that the disputed land belonged to Ram Sumiran over which he had his house which had fallen down. It also found that the P.W.3 also could not explain and establish the factual controversy and taking note of the evidence led by the defendants, it recorded a finding that the plaintiff was neither the owner nor in possession of the disputed property. It also found that the land was very much identifiable but in light of the findings given in issue no. (i) that the plaintiff could not establish his possession, therefore, the issue no. (v) was also decided against the plaintiff and the suit came to be dismissed by means of judgment and decree dated 31.10.1981.

The plaintiff preferred a Regular Civil Appeal before the District Judge registered as Civil Appeal No. 12 of 12982 which was after due contest dismissed by means of judgment and decree dated 23.07.1983 affirming the findings of the Trial Court. It is in the aforesaid backdrop that the plaintiff has approached this Court under Section 100 C.P.C.

Sri U.S. Sahai, learned counsel for the appellant has submitted that there was clear evidence available on record which was corroborated by the Commissioner's report to indicate that the plaintiff had a door on the western side which opened in the open land which was being used as a Sehan since the date of vesting. This aspect was clearly ignored and was not considered by the two courts, as a result, there has been a sheer miscarriage of justice.

The learned counsel for the appellant further submits that the lower two courts have not given any findings as to who is in possession and therefore the suit for injunction in absence of such a finding could not have been dismissed.

It is further urged that the Commissioner clearly indicated that the plaintiffs were using the premises in question which was their sehan and the suit in its entirety could not be dismissed and this has also led to substantial injustice for the plaintiffs.

Lastly, it had been urged by the learned counsel for the appellant that the findings which have been returned by the two courts do not reflect the correct manner in which the evidence was led by the plaintiffs and the inferences drawn by the Trial Court while dealing with issue no. (i) do not give a correct picture of the deposition of the respective witnesses as shall be evident from a bare perusal and reading of the said testimonies.

In view of the aforesaid, it is urged that the impugned two judgments are bad in the eyes of law and the instant second appeal deserves to succeed.

Having considered the aforesaid submissions and from the perusal of the material on record, this Court finds that while dealing with the first question of law as framed above, the statement of Baba Deen will have to be noticed. Having taken note of the above and to answer the aforesaid question, it would primarily first have to be seen that what is the case of the plaintiff and how he has proved his case.

It is a cardinal principle of law that the plaintiff has to stand on his own legs and cannot take the benefit of the weakness of the defence. The Statement of Baba Deen would only become material once the plaintiff has been able to prove the foundational facts of his own pleadings with cogent and relevant evidence.

It is in the aforesaid backdrop if the pleadings of the plaintiff is seen from paragraph nos. 1, 2, 3 and 5 of the plaint, it would indicate that the plaintiff has clearly indicated that he is the owner of the property, his door opens on the western side and the land shown by the letters A, B, C, and D is part of his Abadi land. It has also been pleaded that the open land on the western side from which the plaintiff ingresses and egresses is used for as his Sehan for sundry purposes including for tying of domestic animals. In contradiction to the aforesaid pleadings, the case set by the defendants was that the land in question belonged to one Sri Ram Sumiran who had his house thereon. Once the house had become dilapidated and had fallen down, the same was being claimed by the plaintiff as his Sehan whereas Ram Sumiran had sold the said property to him. It was also urged that the plaintiff was not in possession nor he could prove that he had been in possession since the time of his ancestors i.e. from the date of vesting.

In light of the aforesaid controversy, if the statement of P.W. 1 is noticed, it would indicate that the plaintiff had stated that the house of Ram Sumiran does not fall on any side of the house of the plaintiff and later he stated that the house of Ram Sumiran was on the western side from the house of the plaintiff leaving a distance of one dhur. He further stated that the house of Ram Sumiran was about 40 yards from his home, however, later he goes on to say that the house of Ram Sumiran had become dilapidated and the land was vacant where he sown some vegetables. He also stated that he had placed his Ghur and the same were on the southern side of the disputed property. He also stated that Ram Sumiran had sold his agricultural land to the Baba Deen but did not sell his house.

It is taking an overall view of the statement, it was found that the evidence of P.W. 1 did not inspire confidence for the reasons that he had given contradictory statements regarding the existence of the land in question. At one place, he admitted that the house of Ram Sumiran was there on the western side and the said structure of the house being in dilapidated condition had fallen down.

In light of the aforesaid where the house of Ram Sumiran on the western side is proved and the statement that Sri Ram Sumiran had not sold his house to the defendant which also stands belied by the fact that the defendants had filed a sale deed executed by Ram Sumiran in respect of the house.

The learned counsel for the appellant at this stage also submitted that un-registered sale deed could not be taken into consideration but this statement does not find favour with the Court for two reasons; firstly the said sale deed if of the year 1974 and was for a sale consideration of less than Rs. 100/-, accordingly, it was not required to be registered and therefore the same has been taken note of by the Courts and is no error in this regard. Secondly, it will also be relevant to notice that the suit was for permanent injunction and even in light of the Section 49 of the Registration Act, 1908, the un-registered sale deed could be seen for collateral purposes and in the instant case where the sale deed was being used to see the boundaries, it cannot be said that the Court had committed an error in relying upon the same.

Even otherwise, as already noticed above, there were inherent contradictions in the statement of P.W. 1. In this context if the statement of Bhagwan Deen, P.W. 2 is seen, it would also indicate that the P.W. 2 stated that disputed land in question is the one which was of Ram Sumiran. This corroborates not only the defence but also the statements which was elicited during the cross-examination of the P.W. 1, therefore, to this extent, the statement of P.W. 1 and P.W. 2 is almost similar and it does not substantiate the case as setup by the plaintiff. It was also clearly stated in the cross-examination of P.W. 2 that the house on the land of Ram Sumiran which was in a dilapidated conditions and in shambles was the one which was utilized by the plaintiff for tying domestic animals. The possession of defendant over the said land has also been accepted also in view of the fact that the right adjacent thereto was the agricultural land of Ram Sumiran which was sold to the defendant so also the land over which his house had been constructed. Thus, the case of the defendant was also corroborated.

In light of the aforesaid, it was for the plaintiff to have clearly established the fact regarding his possession over the land in dispute clearly as he had stated that he was in possession since the time of his ancestors from the date of vesting but neither in the pleadings there has been clear details regarding the measurement of the land nor it has been established that his possession had been since the time of his ancestor i.e. from the date of vesting as claimed.

Now, in this context, if the statement of P.W. 3 is seen, it would be noticed that the P.W. 3 was the private commissioner appointed by the plaintiff. From his cross-examination, it would indicate that he was not aware of the factual situation rather he admitted in his cross-examination that he had written the statement regarding the placement of the house etc. and the land on the dictates of the plaintiff and his counsel. Moreover, it is to be seen that a Commissioner which is appointed by the Court or even by a party, his evidence is to be treated like any other piece of evidence. Since he had gone for a limited purpose and looking into the factual aspect of the matter, he could not give any finding regarding the possession. The possession is to be seen in light of the pleadings led by the plaintiffs. There was nothing on record to indicate that the plaintiff was in possession of the said land since the time of date of vesting as it was categorically proved that Ram Sumiran had his house on the western side. The plaintiff-witness too also did not corroborate the stand of the plaintiff and thus it cannot be said that the entire suit could not be dismissed. It is not the case of the plaintiff to establish his possession over any particular area and could establish that the same belonged to the plaintiff.

It would further be relevant to notice that the two Courts have clearly indicated that the plaintiff has not been able to establish his possession, therefore, it is not correct on the part of the learned counsel for the appellant to state that the Court has not indicated who is in possession rather from the perusal of the evidence on record and the findings returned by the two courts, it is evident that the plaintiff who claimed to be in possession since the time of vesting could not establish either the factum or the length of his possession. Moreover, the plaintiff also could not establish his right which stood belied in light of the fact that the house of Ram Sumiran was on the western side who has sold the same to the defendant including his agricultural land. In absence of the clear materials and noticing that the plaintiff was not in possession, the suit came to be dismissed.

In light of the aforesaid, it cannot be said that the two Courts have not given any finding rather the conclusion arrived at by the two Courts that the plaintiff could not establish his title nor his possession led to the dismissal of the suit which was also fortified by the Lower Appellate Court.

In light of the above where the entire controversy has been thrashed out by the two courts and have recorded pure findings of fact, this Court is not inclined to disturb the same in exercise of the powers conferred under Section 100 C.P.C., nor is it equipped to re-appraise the evidence to come to any different conclusion unless the findings are perverse, however, this is not the situation in the instant case, accordingly, the two questions of law are answered.

This Court does not find that there is any merit in the appeal and it is accordingly dismissed. The judgment and decree dated 31.10.1981 passed by the Munsif, Uttraula at Gonda in R.S. No. 55 of 1980 and the judgment and decree dated 23.07.198 passed by the 7th Additional District Judge, Gonda are affirmed. In the facts and circumstances, there shall be no order as to costs.

The records of the Trial Court shall be returned expeditiously.

Order Date :- 23.3.2023

Asheesh