Majeed And Others vs Gulab Chand And Others
2023 Latest Caselaw 29894 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:70821
 
Reserved
 
Court No. - 19
 

 
Case :- SECOND APPEAL No. - 335 of 1983
 

 
Appellant :- Majeed And Others
 
Respondent :- Gulab Chand And Others
 
Counsel for Appellant :- Dr. R.K.Srivastava,Kalamuddin Khan,Raghaw Ram Upadhyay,Rajendra Pratap Singh
 
Counsel for Respondent :- Umesh Chandra Srivastav,B.K.Singh,Ishwar Nath Tewari,S C Shukla,S.K. Dwive3di,Somesh Tripathi,U. Chandra,V.K. Srivastava
 

 
Hon'ble Jaspreet Singh,J.

1. This is the defendant's second appeal challenging the judgment and decree dated 15.03.1983 passed by the Civil Judge, Sultanpur in Civil Appeal No. 504 of 1980 whereby it allowed the plaintiff's first appeal after setting aside the judgment and decree passed by the Trial Court dated 30.09.1980, as a result, the suit of possession which was dismissed by the Trial Court has been allowed and decreed by the Lower Appellate Court.

2. The aforesaid second appeal was admitted by this Court on 19.04.1983 on the following substantial questions of law as framed in the memo of second appeal which reads as under:-

"1) Whether the cardinal principle of law that the plaintiffs have to prove their case on the strength of their own evidence could have been departed with in the instant case and their suit could have been decreed on the alleged short-comings and lacuna in the case of the defendants?

(II) Whether the possession of the defendants over the house and the land in question, which was admitted by the plaintiffs, raises a presumption of title in favour of the defendants and the plaintiffs ought to have established their own title by cogent evidence or the burden lay upon the defendants to establish their right of possession over the property in question?

(iv) Whether in view of the settled position of law that a person in possession cannot be ousted or restrained from enjoyment of possession by any other person except the true owner, was not it obligatory upon the plaintiffs to establish their title over the property in question before the decree could be granted in their favour?.

(v) Whether in the absence of any evidence either documentary or oral with respect to the acquisition of the land (site) or construction of the house thereon by the plaintiffs or their father could at all have been presumed that they were the owners simply because according to the learned lower appellate court, the defendants failed to establish that they were not residents of village Hasanpur?"

3. In order to answer the aforesaid questions of law, it will be necessary to examine the case of the respective parties. For the sake of convenience, the Court shall refer to the parties as they were originally impleaded at the time of institution of the suit.

4. The Plaintiffs-respondent herein had instituted a suit seeking a decree of permanent injunction and possession registered as R.S. No. 160 of 1974 before the Court of Munsif, South, Sultanpur stating therein that the plaintiffs were the owners in possession of the disputed property which was shown by letters A, B,C, and D and they also had their sehan since the time of their father and forefathers which was being used by the plaintiffs for their ingress, egress and other domestic purposes as their sitting, tying domesticated animals and for drying cow-dungs and for keeping other articles.

5. It was further stated that since the family of the plaintiffs was expanding and their old house did not have enough accommodation, accordingly, Radhey Shyam, the original plaintiff had raised constructions in the disputed property. Earlier, the same was given to one Sri Ramai who was its tenant, however, since the plaintiff required the premises, accordingly , Ramai vacated the same and he also executed a disclaimer that he has handed over the premises to Sri Radheyshyam and whatever improvement was made by Sri Ramai shall not be claimed from the original plaintiff.

6. It was also stated that the defendant namely Majeed @ Menhdi was looking for an alternate accommodation as he has left his earlier village Hasanpur and required temporary residence till such time he was able to procure one of his own and started residing in the disputed portion with the permissions of the plaintiff and further agreed that whenever Radhey Shyam required the premises, he would vacate and handover the same.

7. Since the defendant did not vacate, accordingly, his right to remain in the premises which was purely permissive in the nature, as that of a license, was terminated and thus the suit bearing No. 160 of 1974 came to be filed seeking a decree of mandatory injunction and possession.

8. The suit came to be contested by the defendant nos. 1 to 4 and it was pleaded that the defendants were old residents of Mauza Karodia and were there since the time of their fore fathers. It was also stated that apart from the disputed property, the defendants have another property. The land in the premises belonged to the defendants and they were using it as then sehan for their benefit and convenience. The property as indicated has not been correctly shown in the Commissioner's report and the defendants were never the licensee of the plaintiff. The defendants have been residing in the premises from long, moreover, their house was near the River Gomti and on account of flooding in one season, it had fallen down and thereafter the defendants had raised new constructions and in order to usurp the property, the plaintiff has filed the suit to harass the defendants which deserves to be dismissed.

9. Upon the exchange of pleadings, the Trial Court framed 9 issues, however, the important issues upon which the parties went to trial were:-

(i) Whether the plaintiffs are the owner of the disputes house as alleged;

ii) Whether the defendants are the licensees of the plaintiffs as alleged in the plaint;

(iii) Whether the plaintiffs are the owners of the disputed land shown by the letters A, B, C and D in the plaint in map;

(iv) Whether the defendants made unauthorized constructions shown by letters La, Ma, Va, Na in the plaint map;

(v) Whether the disputed constructions is liable to be demolished as alleged;

10. The parties led their respective evidence and the Trial Court by dealing with issues nos. (i) and (ii) found that the plaintiffs could not establish their ownership or rights over the disputed premises and as such it cannot be stated that the plaintiffs are the owner and the defendants are its licensee. The Trial Court also recorded a finding that the defendants have not raised any unauthorized constructions nor the same was established and with the aforesaid findings, the suit of the plaintiff came to be dismissed by means of judgment and decree dated 30.09.1980 passed by Munsif, Sultanpur.

11. The plaintiffs being aggrieved preferred Regular Civil Appeal under Section 96 C.P.C. which came to be registered as Civil Appeal No. 504 of 1980. The Lower Appellate Court after considering the matter on merits and upon re-appraisal of the entire evidence both and oral and documentary reversed the findings of the Trial Court, as a result, the suit of the plaintiff which was dismissed by the Trial Court came to be decreed on 15.03.1983 by the Lower Appellate Court holding that the plaintiff was entitled to possession of the disputed house and the defendants were directed to remove their possession within a period of two months.

12. It is this judgment of reversal which is under challenge before this Court in light of the substantial questions of law as framed.

13. The Court has heard Sri R.R. Upadhyay, learned counsel for the appellant and Sri Somesh Tripathi, learned counsel for the respondents at length and also perused the records.

14. Sri Upadhyay, learned counsel for the appellant while assailing the judgment of reversal has urged that the plaintiff is required in law to establish its own case on the strength of its own pleadings and evidence. While considering the matter, the Court is not required to look at the weakness of the defence to grant any benefit to the plaintiff. In the instant case, it is the specific case of the plaintiffs that they were the owners of the property since long as their father and fore-fathers were the residents of Village Karaundia, Pargana Miranpur, Tehsil and District Sultanpur.

15. It was also pleaded that earlier Sri Ramai was a tenant who vacated the same as the plaintiff Radhey Shyam required the premises for his own living. In case if Radhey Shyam required the plaintiffs for his own living and got the same vacated from Ramai then there was no occasion for the plaintiffs to have permitted the defendants to reside therein temporarily on permissive basis as alleged in the plaint.

16. Thus, the theory as setup by the plaintiff right from the inception becomes doubtful. It is further submitted that the plaintiff also could not establish how the said premises came to be owned/constructed by the plaintiffs and his fore-fathers and in absence of any cogent evidence in this regard, the suit of the plaintiff could not be decreed irrespective of any weakness in the defence of the appellants herein.

17. Sri Upadhyay, learned counsel for the appellant has taken the Court through the evidence led by the plaintiff and has pointed out to the discrepancies in the statement which falsifies the case of the plaintiff.

18. It was also stated that the defendants have been the owners of the disputed property and have been in their possession since the time of their fore-fathers. It was also established that on the eastern side of the house of the defendant, they had a grave-yard which had the graves of their ancestors. It is further stated that the plaintiffs had its house and between the house of the plaintiff and disputed premises there is a road from the western side of the plaintiff's house after crossing the road, the disputed property is located which apart from the defendant's house also had a well.

19. It is further urged that the said premises have been in possession of the defendants who had been able to establish their possession as well as user but the same has been misconstrued by the Lower Appellate Court and as such the findings recorded are bad and against the material on record, accordingly, the Lower Appellate Court committed an error in decreeing the suit merely on the basis of certain weakness in the defence but ignoring that the plaintiff himself could not establish its ownership and possession which has resulted in sheer miscarriage of justice, consequently, the appeal deserves to be allowed.

20. The plaintiff-respondents represented by Sri Somesh Tripathi, learned counsel has submitted that the original defendants was actually the resident of Gram Hasanpur. He was involved in criminal activities and had been charge sheeted in the murder of Radheyshyam. He being a man of criminal antecedents by resorting to force is not vacating the premises. The original defendant was compelled to leave his original house in Village Hasanpur and on pretext that he was looking for and getting his house constructed sought temporary residence in the premises in dispute from the father of the plaintiff namely Radhey Shyam.

21. Ample evidence was brought on record to indicate that the defendant was originally residing in Village Hasanpur but as he was driven out on account of his criminal activities from the said village, he sought shelter at Village Karaundia, Pargana Miranpur, District Sultanpur. The defendant and their witnesses corroborated the facts that they had come to the village Karaundia only few years ago and the well which was being claimed by the defendant was existing since last 50 years, thus, there was no reason to state that the same was dug by the defendant or their fore-fathers.

22. It is also urged that the material was brought on record to indicate which was substantiated by the plaintiff and his witnesses that earlier Ramai was residing therein but at the time when he left, he executed a disclaimer not to claim any amount from Radhey Shyam on account of the improvements made by him and thus there was ample evidence to indicate that the plaintiffs were in prior possession of the said property which belonged to them and their fore-fathers and the defendants had failed to establish that they had raised the premises or they were residing therein since the time of their fore-fathers, as pleaded by them, thus, the Lower Appellate Court has appraised the evidence appropriately and have recorded a finding of fact in favour of the plaintiff which is not liable to be disturbed in exercise of powers under Section 100 C.P.C. and as such the appeal deserves to be dismissed.

23. The Court has heard the learned counsel for the parties and also perused the material on record.

24. At the outset, it may be stated that the issue which has been reflected in the substantial questions of law as framed, as a proposition, is now too well settled to be disputed, however, its applicability to the instant proceedings is to be adjudged. As per the appellant's the Lower Appellate Court has failed to appreciate the contentions and has decreed the suit not on the strength of the pleadings and evidence of the plaintiff rather it has been done on the basis of weakness of the defence which is clearly not permissible.

25. It is also not disputed that a person in possession has a right to resist any unlawful dispossession and further a person seeking a decree of possession on the basis of title or prior possession has to establish the same on its own strength.

26. In light of the aforesaid propositions, if the plaint in suit is perused, it would indicate that the disputed property in question was in occupation of the plaintiff and his predecessors since several decades. It was also pleaded that the plaintiffs have been using the said house and sehan for their beneficial enjoyment. About 25 years ago, since the ancestral house had paucity of accommodation, accordingly, the disputed house in question was made by the father of the plaintiff and it also had a well which has been made by the father of the plaintiff.

27. It was also specifically stated that the said land, house, sehan land and the well have been in occupation of the plaintiffs since prior to the abolition of the Zamindari and as such it came to be vested with the plaintiff and his fore-fathers. It was also pleaded that Ramai was earlier a tenant and upon his vacating the premises, the same was sought by the defendant no. 1.

28. It was stated that earlier defendant no. 1 was a resident of Village Hasanpur and after leading Hasanpur, earlier, the defendant no. 1 was residing in Police Line- Karaundhia which was on the southern side of the railway line and later defendant no. 1 shifted to Village Karaundhia which was on the northern side of the railway line running from Lucknow to Sultanpur and sought permission of the father of the plaintiff to reside in the disputed premises on temporary basis. Since the defendant no. 1 was permitted to reside only on temporary basis, accordingly, the defendant was asked to vacate the premises on 15th April, 1974 and his permission to reside also stood revoked but the defendant refused which resulted in filing the suit.

29. It was also pleaded by introducing an amendment that the original plaintiff Radhey Shyam was murdered wherein the defendant was charge sheeted.

30. The suit was resisted by the defendant on the basis of prior possession and the fact that the defendant and their fore-fathers have been residing therein from long. The plaintiffs were not the owners and the plaintiff could not seek the possession from the defendant.

31. In this context, if the evidence on record is seen, it would be found that the plaintiff had filed a sale deed bearing Paper No. C-84 to establish that the defendant along with Rahmat Hussain who had their grove in Village Hasanpur. The sale deed was executed on 23.09.1971 which reflected that the executants namely Rahmat Hussain and Menhdi Hussain are the residents of village Hasanpur. Rahmat Hussain is the brother of Menhadi Hussain, the defendant no. 1 and this clearly established that the defendant was earlier the original residents of Village Hasanpur.

32. This falsified the stand of the defendant to state that the defendant and his fore-fathers were residing in the disputed property in Village Karaundhia since several decades. The defendant could not explain regarding his relationship with his brother Rasheed Hussain and how his name came in the revenue records in respect of grove land which was sold by the defendant by means of sale deed dated 23.09.1971.

33. While the defendant was cross-examined, he stated that he was residing in the disputed premises since about 20 years which was in contradiction to his pleadings that his ancestors resided in the said premises. From the perusal of the written statement filed by the defendant, it was mentioned that the land towards the east of the passage is in possession of the plaintiff whereas the land towards the west of the passage belongs to the defendant but what is important to notice is that this statement of the defendant was falsified by the fact that the house of the plaintiff Radhey Shyam already existed towards the west of the passage.

34. Another important factor which can be noticed is the fact that the defendant by means of an amendment raised a plea that the plaintiffs are the licensee of the defendant. Apparently, in case if the plaintiffs were the licensee of the defendant who have been living there since several decades then this plea should have been raised in the first instance but introducing the said plea by way of an amendment appears to be an afterthought and does not give much credence to the defendant. Even in his cross-examination, the defendant could not establish that any rent/license fee was received from the plaintiff and nor any receipt in respect thereto was issued by the defendant.

35. Another important factor that needs to be examined is the fact that as per the defendant, they had taken the land from Raja Sahib Diara, however, no evidence oral or documentary evidence establishing the aforesaid could be placed on record by the defendant. A reference to the graveyard was made by the defendant to substantiate that their ancestors were buried there, however, this also stood falsified by the fact that initially the defendants had filed a suit staking a claim in respect of the graveyard and the same was also dismissed.

36. The fact that the defendant was involved in criminal antecedents and was a history-sheeter could not be disputed by the defendant and apparently some inference has been drawn by the Lower Appellate Court that the defendant is retaining the premises on the basis of his influence cannot be completely ruled out.

37. On the contrary, if the evidence led by the plaintiff is seen, it would indicate that the plaintiff stated that his father and fore-fathers were residing in Village Karaundhia. The plaintiff further stated that they were the owners of the disputed premises and it also had a well which was dug by the plaintiff's father. No evidence to the contrary was led by the defendant to establish otherwise. The plaintiff-witnesses also corroborated the prior living and possession of the plaintiff and his fore-fathers. The plaintiff also established that earlier one Ramai was in occupation and after he left he executed a disclaimer.

38. At this juncture, it will be relevant to notice that the Trial Court had disbelieved the evidence of the plaintiff simplicitor on the ground that the plaintiff could not establish any document regarding his ownership.

39. The Trial Court also stated that the document of disclaimer executed by Ramai also becomes doubtful for the reason that while he was inducted as a tenant, there was no document then while leaving the premises, there would be no occasion for Ramai to have executed the disclaimer and for the aforesaid the suit has been dismissed.

40. From the perusal of the decisions rendered by the Trial Court, it would be found that the Trial Court has considered the evidence in a cursory manner and has not even indicated any reason as to why the evidence of the plaintiff-witnesses were not inspiring and why they have been discarded.

41. What this Court finds is that in the rural backdrop where a person is in possession especially in respect of Abadi which has been there and in their possession from the time of their father and fore-father, there is generally no document of title. It is possessory title which is with the parties and is in their possession since generations which in itself perfects their title and this right is also recognized by Section 9 of the U.P.Z.A. & L.R. Act, 1950.

42. It is in the aforesaid backdrop where the plaintiff had sought a decree of possession clearly in light of the pleadings which substantiated their claim for possessory title. The issue which was to be noticed by the Court was as to whether the plaintiff could establish his prior possession to that of the defendant.

43. It is in the aforesaid light, if the evidence as well as the decision rendered by the two courts is seen, it would be found that in so far as the prior possession of the plaintiff is concerned, the same was established. Once, the same was found acceptable, it was also necessary to examine the evidence of the defendant but in light of the discussions made hereinabove, including the reasoning given by the Lower Appellate Court, it is clear that the defendant could not establish his prior possession rather from the perusal of his testimony, it appears and is quite plausible that earlier the defendant was the resident of Village Hasanpur and thereafter he came to the Village Karaundhia. No evidence could be led by the defendants to establish that his forefathers were that of Village Karaundhia or that they had raised the said house and the well or how they acquired the land from Raja Diara also could not be proved.

44. In absence of any cogent evidence on the aforesaid points, the evidence of the plaintiff is much more inspiring and credible and this has been noticed by the Lower Appellate Court and it being a finding of fact after perusal of the evidence on record and an inference which has been drawn from the evidence is also a finding of fact and is not assailable in terms of Section 100 C.P.C.

45. For the foregoing reasons, this Court is satisfied that the judgment and decree passed by the Lower Appellate Court dated 15.03.1983 passed in Civil Appeal No. 504 of 1980 does not suffer from any patent illegality or perversity to persuade this Court to intervene. More so, when a view has been taken by the Lower Appellate Court which is based on appreciation of evidence and the same is in the domain of the Lower Appellate Court, being the final court of fact and the law has been administered appropriately, then merely because another view is possible, this Court in exercise of powers under Section 100 C.P.C. will be loathed to disturb it unless it is shown to be perverse.

46. In view of the aforesaid, the instant appeal is dismissed. The judgment and decree dated 15.03.1983 passed in Civil Appeal No. 504 of 1980 is affirmed. In the facts and circumstances, there shall be no order as to costs. The records of the Trial Court be returned forthwith.

(Jaspreet Singh, J.)

Order Date 30th October, 2023

Asheesh