Haneef Beg and Others vs Julekha Begam and Others

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

This is the Defendants'' second appeal arising out of Suit No. 355 of 1992, filed by the Plaintiff / Respondent-Julekha Begam, which was decreed vide judgment and order dated 21.10.2009 and appeal filed by the Defendants / Appellants has been dismissed.

The brief facts, as stated in the plaint, are that a suit for injunction was filed by the Plaintiff / Respondent-Julekha Begum on the ground that she is the owner in possession of the house situated in Village-Sherpur Kalan, Pargana & Tehsil-Pooranpur, Janpad-Pilibhit. It was a house in dilapidated condition and now it has been converted in an open plot. From 25 years. she is in possession of the said property without any obstruction of anybody. The Plaintiff has also given the boundary stating in the plaint that from the said land there is aam rasta towards east, towards west house of Yaseen Beg, towards north house of Jakir Beg and towards south house of Hanif Beg (Defendant No. 1). The aforesaid plot, which has been shown in the map of the plaint as Ya, Ra, La, Wa, was purchased on 05.07.1967 by a registered sale deed and from that date she is in possession of the said property. The Defendant No. 1 has got no concern with the said property. A wall has been constructed by the Plaintiff, which is 5-1/2 ft. in length and 6 ft. in height. The Defendants illegally has opened a door about 2-3 years before and they wanted to take the possession of the said property, then a complaint to this effect was made, but in spite of the aforesaid fact, they are interfering in the possession of the property. Further, averment has been made that a proceeding u/s 145 Code of Criminal Procedure was also initiated, in which possession of Sayeed Khan was not found, that was decided on 29.06.1985 and it was held that finding in a proceeding u/s 145 Code of Criminal Procedure cannot be taken into consideration.

The trial court framed various issues and has recorded a finding on the basis of evidence on record that on the basis of sale deed dated 05.07.1967, the Plaintiff is in possession of the property in dispute and the identity of the property has also been verified. A finding to this effect has also been recorded that the Defendants have illegally opened a door towards that side, though the Defendants have pleaded that the disputed plot is Sehan of their house for the purpose of flowing the water. Further, it is recorded as Abadi in 1339 fasli and the Defendants are in possession of the said property from the time of their ancestors. In the year 1960, a pucca wall has been constructed by the father of the Defendant. The trial court after considering the evidence of PW-1 has recorded a finding that in his chief examination, he has proved the signature on the sale deed and has further stated that immediately after the sale deed, Julekha Begam is in possession of the property in dispute. Further, he has denied the possession of the Defendants. He has also supported the case of the Plaintiff that from about 26-27 years the old wall is there. PW-2 has also made a statement and admitted that Julekha Begam is in possession of the property in dispute and Defendants wanted to take possession of the said property. DW-2 in his statement has said that the property has already been partitioned and all the heirs of Rajab Ali Beg are in possession of their respective shares of the property. The trial court after recording such finding has come to the conclusion that the property belongs to the Plaintiff and she is in possession of the property in dispute, therefore, the Defendants have illegally wanted to interfere in her possession, as such, a restrain order was passed and suit has been decreed by judgment and order dated 21.10.2009. The Defendants filed an appeal, but the appellate court after considering various issues has recorded a finding that from the record it is clear that Plaintiff has proved her title on the property on the basis of sale deed dated 05.07.1967 and she is owner in possession of the property shown in the map of the plaint. After recording such finding, the appellate court has dismissed the appeal vide judgment and order dated 01.03.2011. Hence, the present second appeal.

Learned Counsel for the Appellants has raised various issues and submitted that the sale deed dated 05.07.1967 cannot be held to be valid without any partition. Further submission has been made that unless and until the partition is proved, it was a joint property and no permanent prohibitory injunction can be granted, therefore, the court below has misread the statement and evidence and has wrongly decreed the suit.

I have considered the submissions of the parties and perused the record. From the record it clearly appears that a finding of fact has been recorded that property has already been partitioned and the parties are in possession of their respective shares of the property. From the statement of DW-2 it is clear that he himself has stated that partition has taken place and he has not disputed the sale deed. Further, a finding of fact has also been recorded by the appellate court that factum of execution of sale deed has been proved and boundary shown there under has also been verified. A finding has also been recorded that Defendants have failed to prove that this is their property and they are in possession of the property in dispute, though they have stated that it is their Sehan, but they are not able to prove from the record that this open plot is being used as Sehan by them.

In view of the aforesaid fact and circumstances, in my opinion, the findings recorded by the courts below are findings of fact and as no substantial question of law is involved in the present appeal, it is hereby dismissed.

No order as to costs.