Amritlal Agrawal vs Visnukant Agrawal

This appeal has been filed by the plaintiff/appellant against the order of judgment and decree dated 30.04.2009 passed by the learned Additional

District Judge, Janjgir-Champa in Civil Suit No. 20-A/2008 whereby the suit of the appellant has been dismissed.

The plaintiff/appellant filed a civil suit praying for declaration of title and permanent injunction interdicting the defendant from disturbing the peaceful

possession and enjoyment of the appellant/plaintiff over the suit property.

Case of the plaintiff/appellant is that he is the absolute owner of the suit house after partition which is situated at Akaltara, Ward No. 06 (old),

House No. 348 (old) at present Ward No.5, House No. 119 and he is in continuous possession of the suit property. On 22.06.2007, a public notice

regarding mutation was published by the respondent/defendant after colluding with the employees of Municipal Council Akaltara and got deleted the

name of the appellant/plaintiff on the documents pertaining to the disputed house and after recording his name on the said documents, was looking to

sale out the suit house and is threatening the plaintiff to leave the disputed house.

On 05.03.2008, the appellant/plaintiff has made an application for incorporating his name in place of respondent’s name in the Municipal record

but the Municipal Corporation Akaltara has not decided the plaintiff’s application therefore, he has filed a civil suit before the Additional District

Judge, Bilaspur which was registered as Civil Suit No. (9A/97) and the trial court passed the judgment and decree dated 11.03.98 in favour of the

appellant/plaintiff. Thereafter appellant/plaintiff filed a civil suit before the Additional Sessions Judge Janjgir-Champa which was registered as Civil

Suit No. 23-A/84 wherein he has pleaded that the Municipal Corporation Akaltara and the defendant/respondent are trying to dispossess him from the

suit house.

In his written statement, the defendant/respondent has denied all the allegations and stated that the partition between the family was held on

31.10.1983. He has also denied the fact that the disputed house was received by the Plaintiff/appellant in partition. He has also denied that the

appellant/plaintiff was declared owner of the disputed house vide judgment dated 11.03.98 passed in Civil Suit No. 23A/84 (Civil Suit No. 9A/97) but it

has been pleaded that in the said Civil Suit the disputed house was not in question therefore, no decree has been passed in favour of the

appellant/plaintiff. The appellant/plaintiff is not the owner of the disputed property and that he has illegally recorded his name over the suit property on

27.08.84. The respondent has also denied the fact that the appellant was in possession of the disputed house in question. As per partition deed dated

31.10.1983, after partition, the house in dispute was registered by the occupants in their names and therefore the suit has been rejected.

The trial court, after recording the evidence of both the parties, passed the judgment and decree dated 30.04.2009 by dismissing the suit of the

plaintiff/appellant. Hence this appeal.

Counsel for the appellant submits that the impugned judgment and decree is contrary to the facts of law therefore, is liable to be set aside. He

submits that the trial Court has erred in holding that the appellant has not proved the absolute ownership and continuous possession of the suit house on

the basis of Ex.P-1, P-2 and P-5. He submits that the trial court has ignored the material available on record and passed the impugned judgment and

decree. He submits that the court below has erred in holding that the plaintiff/appellant has filed civil suit on the basis of earlier judgment and decree

dated 11.03.98 passed in Civil Suit No. 23A/84 (9A/97) but the same has been proved on the basis of Family partition dated 31.10.1983 which has

been ignored by the trial court and has passed the impugned judgment and decree.

Counsel for the appellant has filed application under Order 44 Rule 27 of the Code of Civil Procedure along with the list of documents and submits

that during pendency of this appeal, the respondent/defendant has withdrawn the First Appeal No. 335/1998 and has sold the house situated at

Akaltara through registered sale deed dated 11.04.1986 in favour of some third person. These documents are necessary for deciding the plaintiff’s

suit therefore, they are taken on record.

Counsel for the respondent, on the other hand, supported the impugned judgment and decree.

Heard counsel for the parties and perused the material available on record.

The main objection of the plaintiff is that in the earlier suit ( No. 9A/97), vide judgment and decree dated 11.03.98, the disputed house has been

declared to be the portion of the appellant. He has filed certified copy of the judgment and decree and the defendant has also admitted the family

settlement which is Ex.P-5 to P-10 and in the said family settlement, the property which is in the name of the appellant/plaintiff is as follows :

In the earlier suit, the court below has framed issue No. F as under :

Vide judgment dated 11.03.98, learned Additional District Judge, Bilaspur declared the plaintiff/appellant Amrit Lal as the owner of the plaint

mentioned in the partition deed. Schedule a,b and c were also declared part of the said decree. The plaintiff/appellant has pleaded ownership by virtue

of earlier judgment and decree. Appellant has filed several documents including the Family Settlement Ex.P-5 to P-10 and judgment and decree dated

11.03.98 (Ex. P-1) but in these documents

Ward No. 6 House No. 348 now Ward No. 5 House No. 119, Akaltara

is not mentioned. As per the Family Settlement, appellant Amritlal has got the ownership of sun facing at Akaltara house.

This initial burden of proof was required to be discharged by the plaintiff/appellant. The plaintiff has failed to prove its burden that the disputed

house is the same house which is included in the family settlement and no document has been proved by him in this regard. The appellant admits in his

cross examination wherein he has stated

Learned trial court in para 9 of its judgment finds that the disputed house is not proved to be in the possession and ownership of the

appellant/plaintiff and it has also been observed that the disputed house was also not mentioned in the earlier judgment and decree.

Appellant/Plaintiff has filed application under Order 41 Rule 27 CPC and filed some documents one being the sale deed and the other being order

in appeal of the earlier suit but as the learned trial court observed that nothing has been mentioned with regard to the disputed house in the suit, there is

no necessity of these documents for deciding the present appeal therefore application of the appellant is dismissed.

Learned trial court finds that the appellant/plaintiff has failed to prove his ownership and possession on the disputed house and he has also failed to

prove that the disputed house is the same house which is included in the family settlement. This finding is based on proper appreciation of oral and

documentary evidence. This court finds no illegality or infirmity in the order impugned. Thus, the appeal filed by the appellant is not maintainable, as

such, it is hereby dismissed. Appellant to bear the cost of respondents throughout. Pleaders’ fee, if certified be calculated as per schedule or as

per certificate which is less. A decree be drawn up accordingly.