Babu Lal Batham vs Smt. Ram Kali and Others

M.K. Mudgal, J.

Heard on the question of admission.

The appellant/plaintiff has filed this appeal u/s 100 of the Code of Civil Procedure, being aggrieved by the judgment and decree dated 3.7.2004 passed by the Court of X Additional District Judge (FTC), Gwalior in Civil Appeal No. 10A of 2004 affirming the judgment and decree dated 23.3.2001 passed by the Court of Civil Judge Class II, Gwalior in Civil Suit No. 42A of 1994 whereby, the suit filed by the plaintiff for declaration of title and permanent injunction against the defendants was dismissed. In this appeal, the appellant is referred to as "plaintiff" and the respondents as "defendants". The facts in brief of the case are that the plot situated near Mata Ka Mandir Mohalla Ladhedi Gwalior has been owned and possessed by the plaintiff for more than 30 years (which hereinafter would be referred to as the "disputed land"), and was purchased by him from one Bhalli alias Bhagwan Das vide agreement dated 18.7.1990 and obtained possession. The doors of the house of plaintiff open towards the house of Bhalli and the defendants being L.Rs of deceased Bhalli restricted the said opening of doors and forcibly tried to close them on 11.11.1992, hence, the plaintiff filed a suit against the defendants for the relief stated above.

The defendant no. 1 by filing the written statement denied averments made in the plaint stating that the agreement dated 18.7.1990 was forged by the plaintiff. It was further stated that since the land was valued at more than Rs. 100/-, the agreement should have been registered. The possession of the plaintiff was also denied. It was further stated that the land was not owned by deceased Bhalli alias Bhagwan Das only and hence, he had no right to sell it. Since the suit filed by the plaintiff is based on the incorrect facts, it was prayed that the suit filed by the plaintiff be dismissed.

After framing of seven issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff against the defendants as stated above.

Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiff filed an appeal before the first appellate Court which was also dismissed. Hence, this second appeal has been filed as stated herein above.

Heard learned counsel for the parties and perused the record.

The learned counsel for the appellant submitted that both the courts below have committed error in dismissing the suit of plaintiff for declaration of title and permanent injunction even though the plaintiff has been in possession of the disputed plot since more than 30 years within the knowledge of the defendants. Learned counsel further argued that possession of the plaintiff/appellant was found by both the courts below but in spite of that fact both the courts below have committed error in dismissing the suit for injunction. The said relief ought to have been granted for protection of possession.

The plaintiff''s claim is based on Ex.-P/3 i.e. unregistered sale deed whereby the plaintiff had purchased the disputed property on 18.07.90 from Bhalli alias Bhagwan Das but no such document has ever been produced by the plaintiff as to prove the ownership of vendor Bhagwandas. As per Section 54 of T.P. Act the document of sale ought to have been registered even the price of the land is less than Rs. 100/-. In such a circumstance, on the basis of Ex.-P/3, it cannot be inferred that the plaintiff has got title to the disputed land and possession of it. Having considered the evidence on record both the courts have rightly concluded in dismissing the suit as the plaintiff has utterly failed to prove his title and settled possession by any concrete proof. Considering the findings of both the courts being concurrent on facts and no substantial question of law existing for giving rise to admission, this appeal being devoid of merit and substance is hereby dismissed.

No order as to the cost.