Anoop Singh vs Gaon Sabha and Another

Shishir Kumar, J.—Heard learned Counsel for the Appellant.

The present second appeal is arising out of a suit filed by the Plaintiff / Appellant, which was dismissed by the trial court vide its judgment and decree dated 18.04.2009. The Civil Appeal No. 76 of 2009, filed by the Appellant, has also been dismissed by the first appellate court vide its judgment and decree dated 18.11.2010.

The facts arising out of the present second appeal are that Plaintiff / Appellant filed a suit for declaration and permanent injunction restraining the Defendants / Respondents from interfering in the possession of the property in question, which according to Appellant situated at Khasra No. 62 (old No. 114), having an area about 75 square yards. It has further been pleaded in the plaint that he has constructed a house and he is in possession of the said land from 70 years. The trial court has framed various issues as regards the possession and construction of the house in question, as alleged by the Plaintiff / Appellant. The trial court has recorded a finding that in case he is in possession of the property in question, then his name should have been recorded in the relevant records, but in this regard no document has been submitted by the Plaintiff / Appellant. One of the relevant issue was framed by the court below upon the pleading of the parties whether the house in question has been constructed by the Plaintiff is at Khasra No. 62 (old No. 114). The main issue has been decided as issue No. 1. A finding has been recorded as regards construction raised by the Plaintiff / Appellant that he has failed to prove his possession is of 70 years and a finding has been recorded that from the records it does not appear that on what basis the Plaintiff / Appellant is claiming possession over the land in dispute. No documentary evidence has been filed regarding possession and construction. Only proof submitted by the Plaintiff / Appellant is regarding revenue receipt and if that is taken to be correct, then in that revenue receipt the land in dispute is recorded as ''Abadi''. It also does not appear that it is ''Abadi'' of the Plaintiff. A finding has also been arrived by the courts below that in case the construction and possession is of old Khasra No. 114, then there must be some entry in the revenue record. The trial court has also recorded a finding that P.W.1 has submitted that during consolidation he has not taken any steps to get his name mutated. The trial court as well as the appellate court has taken an inference in view of the aforesaid statement that in case he was in possession he should have taken some steps to that effect. The trial court has also recorded a finding that a proceeding u/s 122-B was also initiated which ultimately terminated against Plaintiff / Appellant, therefore, in such circumstances, the trial court as well as the appellate court has dismissed the suit of the Plaintiff / Appellant. Hence, the present second appeal has been filed.

Learned Counsel for the Appellant has raised a plea that the report of the Revenue Inspector has not been considered and various documents filed on behalf of Plaintiff / Appellant has also not been considered by the court below. He raised a plea that u/s 123 of the U.P.Z.A. & L.R. Act, a declaration can be denied although possession as well as construction of the Appellant over the land in question has been admitted upon the land in dispute. From the record, it appears that in a part of the said land there is a construction of the house of the Plaintiff / Appellant, therefore, this issue has been ignored by the court below.

I have considered the submissions of the parties and perused the record as well as the judgments of the court below. From the perusal of the judgment passed by the trial court it is clear that claim of the Plaintiff / Appellant was on the basis of adverse possession of the ''Abadi'' land, but in case Plaintiff / Appellant has failed to prove his possession of the property and during consolidation he has not raised any objection regarding recording his name, then whether in that circumstances unless and until it is proved on the record that he is in adverse possession of the property in dispute, the claim made by the Plaintiff / Appellant cannot be admitted and a decree of declaration and possession cannot be granted. Admittedly, a proceeding u/s 122-B of the Act has been terminated against him. Meaning thereby he has failed to prove his possession. Further, no document has been submitted on behalf of Appellant that any entry in the old Khasra of 114 as regards the construction and possession is there.

In such circumstances, I am of the opinion that findings recorded by the court below are pure findings of fact, based on evidence on record, and no substantial question of law is involved in the present appeal, as such it is hereby dismissed.

No order as to costs.