Dukhana Behera (Dead) vs Prabala Khatua And Others

D.Dash, J

The appellant in these appeals under section 100 of the Code of Civil Procedure (for short, „the Code‟) has assailed the common judgment dated

08.11.1996 passed by the learned District Judge, Balasore-Bhadrak followed by decrees in S.J. Appeal Nos.80 and 81 of 1993.

The respondent, as the plaintiff, had filed Title Suit No.318 of 1988 in the court of learned Munsif, Balasore (as it was then) and Title Suit No.137 of

1988 in the Court of the learned Sub-Ordinate Judge, Balasore (as then was). Both the suits being tried analogously in the court of learned Sub-

Ordinate Judge, those have been disposed of by common judgment dated 07.10.1993 followed by decrees.

Title Suit No.318 of 1988 re-numbered as Title Suit No.252 of 1990 after its transfer to the Court of Sub-Ordinate Judge stood decreed confirming the

possession of the respondent-plaintiff over the suit land described under schedule-„Ka‟ of the plaint therein and the appellant-defendant was

restrained from interfering with the same.

The other title suit, i.e, Title Suit No.137 of 1988 was decreed in part declaring the plaintiff-respondent‟s right, title and interest over the land described

in schedule-„Kha‟ of the plaint therein, restraining the appellant-defendant from changing its nature and character and directing him to deliver the

possession of the same to the respondent-plaintiff within a time frame and on failure for recovery through process of court by removing the standing

house and structure over the land.

The defendant thus having suffered from the above judgment and decrees and aggrieved by the same filed two appeals under section 96 of the Code,

i.e., S.J Appeal No.80 of 1993 and S.J. Appeal No.81 of 1993 in challenging the judgment and decrees passed in the above noted suits. Those appeals

have also been dismissed. The judgment and decrees passed by the trial court thus have been confirmed.

Both these appeals before this Court having arisen out of common judgment followed by decrees passed by the lower appellate court as well as the

trial court; accepting the submission of the learned counsel for the parties, those have been heard together for their disposal by this common judgment.

For the purpose of convenience and clarity; the parties hereinafter have been referred to in the same rank as assigned to them in the original suit,

namely, the appellant as the defendant whereas the respondent as the plaintiff.

The plaintiff‟s case is that the defendant was the original owner of the schedule-„Ka‟ property as per the description given in the plaint of T.S.

No.137 of 1988 in total measuring Ac.0.70 decimals which he had inherited. He on 22.02.1955 sold the said land in schedule-„Ka‟ by a registered

sale deed. It is stated that after execution of the said sale deed and its registration, the plaintiff was put in possession over the suit land. One part of

the land was of Tala kisam which the plaintiff after purchase began to cultivate as it was being earlier so done by the defendant and also enjoyed the

benefits from the small pond over it. It is further stated that in course of time, she made a part of it fit for homestead and started growing vegetables.

Further case of the plaintiff is that when the Major Settlement Operation began, she having fallen ill could not look after the matter relating to the

recording of the land and, therefore, entrusted the defendant to do the needful in the matter on her behalf. The defendant, however, practiced fraud

and cheated her. It is alleged that by influencing the Settlement Authority, the defendant got part of the schedule-„Ka‟ land measuring Ac.0.14

decimals of Tala kisam as specifically described in schedule-„Kha‟ of the plaint of T.S. No.137 of 1988, recorded in his name. The plaintiff claims

that it was without her knowledge. Having heard from some other persons about such manipulation in the record of right in the Major Settlement with

regard to Ac.0.14 decimals of land under schedule-„Ka‟, she on 10.03.1988 obtained the certified copy of the record of right which had been finally

published in Major Settlement and then only, she was confirmed about said mischievous activities of the defendant in creating record of right of the

land in his name in a fraudulent manner by gaing over the Settlement Authority, when he himself had sold the land to the plaintiff and delivered

possession of the same to her.

The above suit having been filed on 11.05.1988, by an amendment on 08.02.1993, it had been introduced in the plaint that in the year 1990, the plaintiff

having fallen ill, had gone to her in-laws house at Salagadia in the district of Midnapur in the State of West Bengal and remained there for better care

and treatment. During that period, within a month from 25.05.1990 onwards, taking advantage of the absence of the plaintiff, the defendant in order to

create evidence in support of his false claim, put up one mud walled house consisting of three rooms over that portion of Tala land which had been

developed by the plaintiff measuring Ac.0.14 decimals. According to the plaintiff‟s case, there was no house over the said land at any time before and

defendant has his permanent house on the land which situates to the south of the said land under schedule-‟Kha‟ and that is under hal khasara 397

measuring Ac.0.05 decimals.

It is pertinent for clarification to state that the prayer for declaration of right, title and possession etc in this suit is in respect of schedule-„Kha‟

property measuring Ac.0.14 decimals was under khata no.102 under plot no.300 (threshing floor) as per previous settlement and that is presently

under Hal khata no.115 and plot no.396 (Bari). The suit filed in the court of Munsif which later came to the court of Sub-Ordinate Judge is one for

permanent injunction and there, the prayer is with respect to the land measuring Ac.0.56 decimals which is the land in schedule-„Ka‟ minus the land

under schedule-„Kha‟ and in exclusion of the same, as per the description given in the plaint of T.S. No.137 of 1988 as at schedule-„Ka‟.

The defendant‟s case is that he never intended to execute any sale deed in favour of the plaintiff in respect of the land in the suit. It is his case that

in order to meet his own marriage expenses, he had to take a loan of a sum of Rs.300/- from the husband of the plaintiff and as insisted upon by the

husband of the plaintiff, finding no other alternative, he had to execute one deed, later on to his utter surprise found to have been nomenclatured as

sale deed in favour of the plaintiff which for all purposes was intended as evidence of mortgage of the land and not sale. It is said that the deed having

been discovered to have been styled as sale deed, when told the husband of the plaintiff said that it be treated as evidence of mortgage to ensure

repayment of the borrowings and that deed in original would be returned on payment of the money lent.

The defendant‟s further claim is that for the above reason, he has never parted with the possession of the suit land and was continuing with the same

as before as its owner ignoring the deed and as agreed upon. It is also stated that on 22.02.1957, the defendant had cleared the loan taken from the

husband of the plaintiff with interest in total amounting to Rs.450/- in presence of villagers. At that time, although the plaintiff‟s husband was to return

the said deed, he avoided to hand it back on the pretext that it had been somewhere misplaced. He, however, assured that he would return the same

when it would be traced out.

As per the defendant‟s case, the house standing over the land under plot no.300 corresponding to MS plot no.396 measuring Ac.0.14 decimals is his

paternal residential house and has been standing over years where he with his family members have been residing all along. With the above projected

case in countering the case of the plaintiff; the defendant has also advanced a claim in the alternative as to acquisition of title over that part of the land

where his house with the space around by adverse possession.

On the above rival case, the trial court has framed as many as seven issues. Upon appreciation of the evidence on record at its level in the

touchstone of the facts set forth in the rival pleadings of the parties forming foundation for their respective case; the plaintiff‟s claim of title and

entitlement to the possession have been found favour with. Accordingly, the suits have been decreed as stated in the foregoing paragraphs.

The defendant having carried first appeals has failed in his attempt in obtaining any reversal/change in the ultimate result of the suits.

By order dated 13.11.1997, both the appeals have been admitted. The following substantial questions of law have been noted for their

determination:-

a) whether the learned courts below are justified in discarding the oral evidence from its consideration in proof of the specific case of the defendant

holding as not maintainable under section 92 of the evidence Act?;

b) whether the learned courts below are justified in recording a finding that the Ext.1 is a deed of sale and accordingly title passed thereunder?;

c) whether the learned courts below are justified in disbelieving the case of the defendant without even considering the oral evidence and other

material available on record?;

d) whether the learned courts below are justified in approaching the case on the assumption that the plaintiffs‟ allegation as to the nature of

transaction under the Ext.1 is true?; and

e) whether the learned courts below are justified in rejecting the defence plea of perfection of title by adverse possession without considering the

weight of Hal ROR, rent receipts and report of the C.C. Commissioner from proper and lawful angle?

Given a careful reading to the above noted substantial questions of law, it is well gatherable that the questions as at (a), (b), (c) and (d) concern

with the nature of the document, i.e., Ext.1 which the plaintiff has projected as sale deed as to have passed title with respect to the land covered

thereunder from the hands of defendant unto her and that is asserted by the defendant as to have not been a sale deed but a document that he had to

execute just to stand for security for the money that he had taken from the husband of the plaintiff to meet his urgent need during his marriage. The

last question as at (e) relates to the acquisition of title over the land, a part measuring Ac.0.14 decimals by the defendant being in possession even

after that sale deed in residing in that house which was standing all along by adverse possession.

At this stage, it may also be stated that plaintiff being successful before the trial court as also in the appeal, having levied the execution proceeding

for recovery of possession of the land under schedule-„Kha‟ of the plaint in T.S. No.137 of 1988 from the defendant, further proceeding therein has

been stayed by the order passed by this Court on 13.11.1997 in Misc. Case No.114 of 1997.

Mr.S.P.Mishra, learned Senior Counsel for the appellant (defendant), in attacking the concurrent findings rendered by the courts below that Ext.1 is

a sale deed and by execution of the same, the defendant has transferred the title over the land in question unto the plaintiff, submitted that such finding

is wholly erroneous both on fact and law. He submitted that the courts below have fallen in error by not properly considering the parole evidence with

other documentary evidence on record as also the surrounding circumstances vis-Ã -vis the conduct of the parties. It was submitted that the

defendant being a illiterate person, the principle of burden of proof of execution of the deed by illiterate woman ought to be applied and accordingly, in

the present case, the plaintiff since has failed to discharge that burden of proof of piloting the required standard evidence, she ought to have been non-

suited.

He submitted that in the alternative, when the defendant has been in possession with the house standing thereon despite execution of the said sale

deed (Ext.1), as the possession of the plaintiff after sale deed is not acceptable, the possession of the defendant in respect of that land has to be taken

to be adverse to the plaintiff and in denial of his title asserting that as of right which stood fortified by the record of right. He, therefore, submitted that

the courts below in acceptance of the alternative plea set up by the defendant ought to have returned the finding that the defendant has perfected title

over that land measuring Ac.0.14 decimals by adverse possession over which the plaintiff‟s right, title and interest have been extinguished since long.

Mr.D.Mohapatra, learned Counsel for the defendant (plaintiff) submitted that the courts below have rightly answered all the issues holding that the

plaintiff has the right, title and interest over the suit land having purchased the same from the defendant by the sale deed (Ext.1) for due consideration

and delivery of possession. It was submitted that merely because an executant is illiterate, that principles of discharging of the burden of proof of the

execution by the executant to have been so made after properly understanding the nature and character of the document as also all other attending

facts do not get automatically attracted and come into play and that is first to be tested on case to case basis. He submitted that here the defendant

having put his LTI on the document, Ext.1, cannot for that sole ground claim the benefit as to the cloak of protection under the law as all other

important factors stand against his case especially, here he is an man having earlier experience in the field. According to him, the later conduct of the

defendant squarely runs against him for availing the benefit.

He submitted that the courts below have committed no mistake by negating the defence claim that the deed (Ext.1) is not a sale deed but a document

which had been executed for the purpose of security and said findings are based on proper appreciation of the settled principles of law as also in tune

with the evidence on record. He further submitted that the defendant has failed to prove the required ingredients so as to establish a case of

acquisition of title over that patch of land measuring Ac.0.14 decimals by adverse possession. He, therefore, submitted that the appeals are liable to be

dismissed. In this connection, he placed reliance upon the decision of the Hon‟ble Apex Court in case of Karnataka Board of Wakf â€"V-

Government of India and others; (2004) 10 SCC 779.

The learned Counsels having submitted their respective written notes of submission, those being placed on record have also been perused and gone

through.

On the above rival submission, let us first of all go through the findings of the courts below and the reasons for recording said findings.

The trial court in answering the first important issue as to the nature of the document, i.e., Ext.1 as sale deed or mortgage has found the recitals of the

document, i.e., the certified copy of the said so called sale deed to be quite clear, unambiguous and specific on the point. In that view of the matter, the

trial court felt it to be no more the need to look into the surroundings or attending circumstances so as to cull out the intention behind the document

coming into being. The deed being of the year 1955 placed for examination as to its nature in the suit filed in the year 1988. The trial court on the face

of the recitals finding those to be in no way ambiguous or involved is of the view that the case is not one which justify or warrant of viewing the

surrounding circumstances and specifies relating to the document to show that the deed was executed as mortgage for security towards the

borrowings made by the defendant from the husband of the plaintiff.

The well settled principles of law are that the provisions of section 92 of the Evidence Act does not prohibit to say or restrict an attempt by a party

to prove that the actual transaction was different from what it is apparently seen with the document itself especially the nomenclature. But in order to

derive support for the said stand, some indication must come from the recitals of the documents that those do not make out a clear case on either side.

The clauses which are important as to passing of right, title, interest and possession as also consideration are somewhat involved and dwell upon

ambiguity. In that case, the role of the parole evidence emerges to see the surrounding circumstances and specifies relating to the document to show

the true nature of the document which the parties had intended to so execute and act upon which they accordingly, acted upon. The party asserting

the plea then shoulders the burden of proof on the score that the transaction as apparently viewed on just a cursor reading and looked at the document

was never so acted upon from the beginning and for that the contemporaneous happenings/events bear significance and are of definite importance.

That exercise would bring within its fold for examination of evidence in culling out the conduct of the parties as well as their dealing with the property

in question to take an overall view in returning the final finding.

The mere form in which the deed is clothed is not decisive. The language of the document if is plain and not ambiguous clearly act as a pointer to

the nature of transaction and then it must be given effect to as a document of that particular nature. The difficulty is posed only when the recitals are

ambiguous and unclear. In that case, the intention of the parties have to be gathered which includes their dealing with the property and for that the

parties may lead the evidence for their proper examination and appreciation.

It has been held in case of Smt. Ganga Bai â€"V- Smt. Chhabu Bai; AIR 1969 SC 20 that:

“It is clear to us that the bar imposed by sub-s. (1) of section 92 applies only when a party seeks to rely upon the document embodying the terms of

the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and

no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or

modifying its terms. The sub-section is not attracted when the case of a party is that the transaction recorded in the document was never intended to

be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different

transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is

admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not

recorded in the document, was entered into between the parties.â€​

The original document in the case has not been proved and the plaintiff has proved the certified copy of that deed marked as Ext.1. The plaintiff

being examined as P.W.1 has stated in detail as to the scribing of the deed, its execution by the defendant having understood the contents to have

been correctly written and admitting its execution before the Sub-Registrar as also the receipt of consideration. She has stated about the loss of the

original and thus laying down the foundation for production and proof of the secondary evidence for its due admission. This Ext.1 has been titled as

sale deed. The courts below having gone through the recitals have found those to have no such ambiguity and the intention of the parties as reflected

therein to be clear that the defendant was selling the land which the plaintiff purchased on payment of agreed consideration. There is absolutely no

such indication in said recitals being read as a whole so as to even infer that title over the land in question was thereunder and thereby not intended to

pass on to the hands of the plaintiff.

In addition to the above, although the defendant claims that he was not given the original sale deed upon payment of the loan dues way back in the

year 1957, yet no such receipt evidencing said payment is filed and proved. The defendant at any time thereafter has not asked the plaintiff or her

husband to give it in writing that such being the arrangement, no right, title or interest in respect of the land remains with them. The defendant has also

not given any notice demanding the return of the document in question. Moreover, having not got the record of right with respect to Ac.0.56 decimals

of land out of the land covered under that deed, no further action against the plaintiff has been initiated by this defendant which here is important as in

the facts and circumstances, the question of defendant feigning his ignorance as to said recording does not at all arise. There is also no such

acceptable evidence on record to suggest that the consideration for said land during the time was much higher than what has been quoted in the said

deed, Ext.1. The plaintiff has proved some other sale deeds executed by the defendant which shows that he is not new/stranger to such type of

dealing of transactions as to the immovable properties. The defendant no.2, on the other hand, has also deposed to have given the registration receipt

to the plaintiff after the registration was done and that again goes without any sort of explanation whatsoever.

The defendant although has not put his signature and his LTI appears on the document in question, Ext.1 yet that factor itself is not enough to get the

cloak of protections of law as are provided to the pardanashin/illiterate woman. In this case, the beneficiary of the transaction is a lady and has also

put her LTI on the plaint. It has been proved through acceptable evidence that the defendant has executed such type of documents and is not a

stranger to such acts etc. Moreover, here the very stand of the defendant is that he knew the deed to have been taken from him was a sale deed and

that he had intended to have been taken as mortgage in securing the repayment of the amount borrowed. Thus, there arises quite distinguishing factual

settings standing against the court in leaning to provide the protection of law to the executants. The submissions of learned Senior Counsel on the

score are thus cannot be countenanced with.

The trial court, upon detail analysis of oral evidence, has concluded that the evidence let in by the defendant on the score that a mortgage was

intended to be created as security for the loan are not consistent. It has also marked some doubtful features in the evidence of all the DWs so as to

infer in the light of the case set up by the defendant.

The lower appellate court, on examining the evidence on record at its level in the backdrop of the settled position of law, has returned the same finding

on that issue that Ext.1 was executed by the defendant selling the suit land to the plaintiff way back in the year 1955 and thereby she had acquired

right, title and interest over the said land.

This Court, in the backdrop of the rival projected case; further keeping in view the settled principles of law holding the field, having gone through the

evidence both oral and documentary on record, is of the considered view that the courts below have rightly answered the issue no.5 in favour of the

plaintiff and against the defendant.

In the net result, the substantial questions of law as at (a) to (d) thus receive the answers running against the defendant.

Now, thus comes the exercise of answering the substantial question of law as at (e).

Undeniably, as on the date of field inspection by the Civil Court Commissioner, i.e, in 13.05.1991, the defendant has been found to be in possession of

the land under Hal plot no.396. He has seen the mud walled dwelling house with thatched roof as also cowshed made of bamboo sticks, mud and

plastered wall with thatched roof over there in occupation of the defendant. The report of the Civil Court Commissioner has been admitted in evidence

without objection from any quarter and those have been marked as Ext.B.

The plaintiff in both the suits had initially pleaded to be in possession of the whole of the suit land measuring Ac.0.70 decimals. The pleading was

specific that the defendant has never been in possession of the land that he sold and he had simply managed to obtain the record of right in the

Settlement Operation finally published in the year 1985. It is quite disingenuous on the part of the plaintiff to come up with the prayer for amendment

of the plaint on 22.02.1992, i.e, long after spot visit of the Civil Court Commissioner on 13.05.1991 and submission of report on 01.07.1991 for inserting

the fact that in between 25.05.1990 to 25.09.1990, the defendant has trespassed over the land measuring Ac.0.14 decimals and put up some

temporary structures by force. It is interesting to note that for at last three years or more, the plaintiff was silent and had been claiming to be in

possession of the entire suit property despite the recording of Ac.0.14 decimals of land in favour of the defendant way back in the year 1985 and it

had been said that the recording of that part of the land has nothing to do with her title and possession. As the prayer for mutation made by the

plaintiff was rejected, a cloud being cast on her right, title, interest and possession, she filed the suit.

The situation is really peculiar. The plaintiff filing the suit in the year 1988 pleads to be in possession of whole of the property in suit. The

defendant from the beginning asserts the claim in all respect including his possession. The record of right of the land described in schedule-„Kha‟ of

the plaint of T.S. No.137 of 1988 under Hal Khata No.115 plot no.396 measuring Ac.0.14 decimals has been finally published on 01.04.1985. The suit

having been filed in the year 1988, the plaintiff has come up later alleging her dispossession in between 25.05.1990 to 25.06.1990 during her absence

and that is during the suit. This is being stated for the first time in the amendment petition filed on 22.02.1992 and not at the time when Civil Court

Commissioner had visited nor thereafter. The plaintiff has not filed any objection to the report of the Commissioner and rather as it appears has

chosen to indicate the date of dispossession or forcible entry into possession over that part of the land prior to the date of visit of the Civil Court

Commissioner. Moreover, the settlement record of right of the entire suit land has not been published in the name of the plaintiff. On 01.04.1985, for

part of the land covered under the sale deed (Ext.1) has been issued in the name of the plaintiff marked as Ext.2 under khata no.326 plot no.283, 284

and 291 measuring Ac.0.04, Ac.0.45 and Ac.0.07 decimals in total Ac.0.56 decimals which are all the agricultural land. The rest land under khata

no.115 under plot no.396 measuring Ac.0.14 decimals has been recorded in the name of the defendant (Ext.3). With said land, some other gharabari

land of the defendant measuring Ac.0.05 decimals has also been recorded when no other cultivable land is included therein.

Interestingly, when it is stated that being so entrusted by the plaintiff to do the needful in the Settlement Operation, the defendant made the

manipulations in getting a part of the sold land, i.e, gharabari land recorded in his name, the plaintiff has proved the settlement Parcha in respect of the

land which has been recorded in her name and that being filed by her has been marked as Ext.6. It thus appears to be falsehood to say that she did not

know anything about the ROR making till she obtained the certified copies being so told about said erroneous publication of record of right by some

persons of the village and thus feigning ignorance about recording till then. The parcha (Ext.6) is in respect of Ac.0.56 decimals of land and then again

it is seen that this plaintiff thereafter has been going on paying the land revenue in respect of her recorded land, i.e, Ac.0.56 decimals (Ext.2) in the

year 1986, 1987 and 1988. All these clearly go to show that the claim of the plaintiff that she had no knowledge of the development in the Major

Settlement operation which in different stages goes for a fairly long period and publication of record of right an afterthought.

The report of the Civil Court Commissioner (Ext.B) and the map appended to it shows that the house and cowshed are standing on plot no.396 and

over the other gharabari land under plot no.397 which is in that very khata (Ext.3), no house is situated. Moreso, there is no independent access to that

land under plot no.397, belonging to the defendant although the plaintiff asserts that over it the house of the defendant stands and he resides with

family therein.

The courts below have completely overlooked the above important features emerging from the evidence which stand against the claim of the

plaintiff as to her possession of Ac.0.14 decimals of land. Those aspects being not kept in view, the courts below have not directed the examination in

proper angle. Said approach of the courts below thus in my considered view is perverse which has impacted the finding on that score.

The evidence of plaintiff (P.W.1) is that in 1992, when she returned from her husband‟s house where she continuously stayed since 1990, she saw the

house to have been made by the defendant on that Ac.0.14 decimals of land. P.W.2 and 3 have stated about possession of the land recorded in the

name of the plaintiff under Ext.2, i.e. Ac.0.56 decimals. The defendant (D.W.1) has stated to have never parted with possession of that homestead

land recorded in his name under Ext.3.

In such state of affair in the evidence, the plaintiff is found to have failed to prove that she had taken possession of the land under Ext.3 from the

defendant. The sale deed being of the year 1955, the plaintiff‟s right to possess the land was with effect from 22.02.1955. If she had not possessed

that part of the land at any time since then when also no such document as to mutation of the land etc is shown, the inevitable conclusion stands to be

drawn that the right, title and interest of the defendant having been extinguished with effect from 22.02.1955 by virtue of that sale deed, his possession

of the land in question thereafter in the absence of any such other arrangement being pleaded and proved by the plaintiff cannot be said to be for and

on behalf of the plaintiff but it has to be as that of an independent possessor having no right, title and interest as also the right to possess. The

possession of the homestead land by residing in the house standing over it under the facts and circumstances has to be presumed to be as like owner

in exercising the right as such stretching over a long period for more than 30 years in denial of the title of the true owner, here it is the plaintiff,

fulfilling all the required classical ingredients, i.e, nec vi, nec clam, nec precario. The plea in the alternative on the ascertained facts and circumstances

cannot be said to be wholly in consistent with the main one. The decision (supra) cited by the learned counsel for the respondent (plaintiff) having

been carefully gone through is found to be distinguishable in the facts and circumstances as discussed and thus does not come to the aid of the plaintiff

in respect of the land covered under the record of right marked, Ext.3. The plaintiff having been conveyed with absolute right, title and interest as also

the right to possess the said land in part, i.e, under Ext.3, since has remained out of possession which continued with the defendant since 1955

onwards; her right, title and interest as also the right to claim possession has to be said to have been exgtinguished.

Thus, it is bound to be held that the defendant has perfected his title over the land khata no.115 plot no.396 measuring Ac.0.14 decimals in mouza-

Balia under Baleswar Sadar P.S. by adverse possession and the plaintiff‟s right, title and interest over the same having been extinguished, she is to be

non-suited to that extent.

The above discussion and reasons provide the answer to the substantial question of law as indicated at (e) of paragraph-6 in favour of the defendant

and against the plaintiff in respect of the land in mouza-Balia under Major Settlement Khata No.115, plot no.396 measuring Ac.0.14 decimals with the

house and other structures standing thereon.

In the wake of the aforesaid, the judgment and decree passed in T.S. No.137 of 1988 declaring plaintiff‟s right, title and interest over the land

described in schedule-„Kha‟ of the plaint therein as also the decree restraining the defendant from changing the nature and character of that suit

land and the direction to give vacant possession of „Kha‟ schedule land to the plaintiff within the time frame or otherwise to be so delivered to the

plaintiff through the process of the court stand set-aside.

The judgment and decree passed in T.S. No.252 of 1990 (T.S. No.318 of 1988) declaring possession of the plaintiff over „Ka‟ schedule of land as

described in the plaint therein are however confirmed.

The appeals are accordingly disposed of and in the circumstances, without cost throughout.