Girish Chandra vs Raj Narain (deceased) and Others

Shishir Kumar, J.—This is a Plaintiff ''s second appeal arising out of Suit No. 99 of 1996 for injunction restraining the Defendants-Respondents from interfering in the property in dispute. The suit was dismissed by order dated 2.1.2006 and the appeal filed by the Plaintiff-Appellant has also been dismissed.

The brief facts arising out of the present appeal, as stated in the plaint, are that the Plaintiff is having a Pucca house in Gram Asauda, Tehsil-Hapur, district-Ghaziabad. In front of the house, there is a Chabutara which is shown in the plaint map as A B C D which is a part of Khasra No. 1393/1 measuring 3 Biswas. The Defendants have got no concern with the said house and the Chabutara. There is a wall towards the west and a door upon the aforesaid Chabutara which goes to the house of the Plaintiff. Due to rainy season, the wall standing upon the said Chabutara has fallen, therefore, he wanted to repair the said wall and if it is not repaired, there is an apprehension that the total wall including the door will also fall and there will be an obstruction for coming and going towards the house of the Plaintiff. As soon as the material for reconstruction was collected, Defendants deliberately stopped the construction and had threatened that they will take the possession of the said property and will not permit the Appellant to reconstruct the wall. Hence, the occasion arose for filing the suit.

Defendants No. 1 and 2 filed their written statement denying the allegations made in the plaint stating therein that the map shown in the plaint as ABCD is based upon a false allegation. The Plaintiff is not the owner in possession of the said Chabutara. The fact remains that towards the north of the said Chabutara, a part of Khasra No. 1393/1 measuring 3 Biswas is a Bnazar land and this property was never in possession of the Plaintiff-Appellant. This property belongs to Land Management Committee and is being used by public. It is wrong to state that any Chabutara is existing on the said plot. The Plaintiff has deliberately not given any Khasra number and even the measurement of the said plot has not been mentioned.

A replication of the written statement was filed and on the basis of the pleadings of the parties, the trial courts framed 8 issues and one of the main issues was whether the Plaintiff is the owner in possession of the disputed wall which is alleged to have fallen, whether in view of Sections 34, 38 and 41 of the Specific Relief Act, the Plaintiff is entitled for any relief, whether the property shown in the plaint as ABCD is a part of the disputed Khasra No. 1393/1 and whether the Plaintiff is owner in possession of the said property ?

On behalf of the Plaintiff, certain documents as report of one Jagdish Kumar Verma and Akar Patra 5 Kha and the order passed by Munsif, Hapur in Case No. 85 of 1986 dated 23.4.1987 and a report of Amin in Case No. 85 of 1986 dated 10.3.1986 were filed. On behalf of the Defendants, the Chakbandi Akar Patra as well as the order in Case No. 368 of 1983, Dinesh Chandra v. Girish Chandra and the Amin report in Case No. 368 of 1983 as well as other various other documents were filed. The trial court after considering the evidence on Issues No. 1 to 5 has recorded a finding that in view of the Akar Patra 2 Ka and other documents, it has been stated that father of the Plaintiff-Appellant has been in possession since 15 years but from the order dated 20.9.1974 passed by the Consolidation Officer, it appears that the name of the father of the Appellant has been directed to be scored out from Khasra No. 1393/1 measuring about 3 Biswas. In the document relied upon by the Plaintiff as a decree passed in Suit No. 85 of 1986, a finding has been recorded that as the Defendants were not the party to that proceeding, therefore, on the basis of the said document, it cannot be held that Plaintiff has become the owner of the property. The map which has been filed by the Plaintiff 45 Ka/1 is different from the commission report submitted by the Amin in Case No. 85 of 1986, Girish Chandra v. Mahesh Chandra. A finding has been recorded that from the documents submitted by the Plaintiff-Appellant he is not able to show that he is in possession of the property in dispute from the date of vesting i.e. immediately from the date of abolition of Zamindari. Though from the statement given by Defendant No. 2, he has admitted this fact that the disputed land is a Rasta Am. A finding has also been recorded after consideration of the judgment and order passed in suit No. 368 of 1983 that in that suit the parties have admitted that Plaintiff and Defendants are the real brothers and towards the east of the house of Girish Chandra, there is a 6'' wide Rasta and towards the east of the house of Mahesh Chandra there is a vacant land of Raj Narain Singh and towards the north of the house of the Plaintiff there is a Gram Sabha land. A finding has been recorded that in case there was a Chabutara towards the north of the house of the Appellant, then he should have denied the map filed and the possession of the property in Suit No. 368 of 1983. After recording such finding, the trial court has held that the property in dispute is a Gram Sabha property and the Appellant has failed to prove from the record that he is in possession prior to the date of abolition of Zamindari. Therefore, in view of 1978 R.D. Page 143 the Hon''ble Court has held that if this is the position, the possession of person will be treated to be illegal. In such circumstances the Appellant is not entitled to any relief and no injunction can be granted. The appeal filed by the Appellant has also been dismissed confirming the finding recorded by the trial court. Hence, the present second appeal.

Sri Vinod Sinha, learned Counsel for the Appellant has submitted that the courts below were not justified in dismissing the suit for injunction in view of the fact that the contesting Defendants had no right and title over the property in dispute. Further submission has been made that once the possession of the house in question has been admitted and Defendants have got no right and title and they are not in possession of the property in dispute and has got no concern, therefore, the courts below has illegally dismissed the suit. Further he has submitted that it is settled in law that injunction can be granted against the entire universe except the true owner. Therefore, the courts below have wrongly dismissed the suit in view of the finding recorded that Defendants have got no concern with the property in dispute. Once it is established from the record that the property is recorded in the name of the Appellant before the date of vesting, therefore, they have become the true owner and as such the courts below was not justified in dismissing the suit. Further the Khasra and Khatauni submitted on behalf of the Appellant has been misread. He placed reliance upon a judgment of the Apex Court reported in AIR 1972 SC Page 2299 and has placed reliance upon paras 4 and 5 of the said judgment which are quoted below:

Neither the trial court nor the first appellate court carefully examined the title of the Plaintiff. In upholding the title of the Plaintiff they have primarily relied on the sale deed executed by Abdulla Saheb in his favour. The Defendant in his written statement had pleaded that D.W.5 was the owner of the suit property and that he had purchased the same from him in 1953. The question whether the Defendant had a valid title to the suit property or not has not been examined either by the trial court or by the first appellate court. The High Court has also not gone into that question. But the High Court has dismissed the Plaintiff ''s suit on the sole ground that the Plaintiff has not satisfactorily proved his title.

So far as the question of possession is concerned,as mentioned earlier,both the trial court and the first appellate court have accepted the Plaintiff''s case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the Plaintiff after the sale deed in his favour is not a relevant circumstances. we are of opinion that it is an extremely important circumstance. The Plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the Plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by some one who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the Plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in our opinion, the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No. 2.

Placing reliance upon the aforesaid judgment, learned Counsel for the Appellant has submitted that Plaintiff can, on the strength of his possession, resist interference from persons who have no better title than himself to the suit property, then the possession has to be protected as against the interference by some one which is not proved to have a better title than himself to the suit property. In such circumstances Appellant submits that the judgment and order passed by the courts below are liable to be set aside.

I have considered the submissions of the Appellant and perused the record. The basis of claim of the Appellant was that it is the property of the Appellant and he has constructed the said wall and the door upon this property and it is being used before the abolition of Zamindari. The courts below after consideration of the documentary as well as oral evidence, have recorded a finding that Plaintiff has failed to prove from the record that he is owner of the property. Further a finding has been recorded that he has failed to prove that it is a part of Khasra No. 1393/1. Further a finding of fact has been recorded on the basis of relevant record that in Suit No. 368 of 1983 which was between the brothers and a compromise was arrived upon, therefore, he cannot go behind the statement and the decree passed in that suit. Further a finding has been recorded that Khasra No. 1393/1 measuring about 6 Biswas is recorded as Banzar in the revenue record. If the father of the Appellant was in possession, but during consolidation proceeding the Consolidation Officer vide his order dated 20.9.1994 has directed to score out the name of the father of the Appellant. A finding has also been recorded that by the order of the Consolidation Officer, the name of the Appellant''s father has been scored out by order dated 20.9.1974. Therefore, in spite of the aforesaid order, if the Plaintiff ''s father or Plaintiff has not handed over the possession, then his possession cannot be treated to be legal. His possession will always be treated to be illegal in view of the fact that it is Gram Sabha property. The courts below have also recorded a finding that the Map No. 45 Ka 1/6 which has been filed by the Plaintiff, is different from the Commissioner report in Case No. 85 of 1986. Therefore, from the documents submitted on behalf of the Plaintiff-Appellant the Plaintiff has failed to prove that he is in possession of the property before the date of abolition of Zamindari. Plaintiff has also failed to prove his possession and ownership. In such circumstances, a finding has been recorded that it is a Gram Sabha property and no conclusion can be drawn that the Appellant is the owner of the property in dispute and he is also not owner of the disputed wall. The trial court has also recorded a finding on Issue No. 2 that suit is barred by Sections 34, 38 and 41 of the Specific Relief Act. As regards the judgment cited by the Appellant, is not applicable in the facts of the present case in view of the fact that in that case the Plaintiff was able to prove his possession and courts below recorded a finding that he is in possession, therefore, in such circumstances, the Apex Court has held that Plaintiff is entitled for injunction because Defendant in that case was not having a better title.

In view of the findings recorded by the courts below, I am of view that the present appeal has no merit and as no substantial questions of law are involved, the appeal is hereby dismissed.

No order is passed as to costs.