Karan Singh vs Sanjeev Kumar

Rakesh Tiwari, J.—Heard counsel for the plaintiff appellant and perused the record.

Original Suit No. 362 of 2001 was filed by the plaintiff appellant seeking relief of permanent injunction by restraining the defendant respondent from interfering with his possession over a piece of abadi land situate in mauja Garhwala, pargana Marhara, tehsil and district Etah.

A report was sought by the Court through Advocate Commissioner which was submitted on 2.8.2001. The plaintiff appellant also filed an application in the suit for restraining the defendant-respondent from interfering in the construction being made by the plaintiff over the land in dispute. The Court by its order dated 29.8.2002 directed the parties to maintain status quo on the land in dispute.

The defendant respondent filed his written statement inter alia that plaintiff had given wrong address to the Court for service upon the defendant respondent and that his "madhai" existed on the plot; that he had laid foundation for construction of a "pakka" building and that when he was raising the construction, the plaintiff appellant filed suit on false allegations in order to grab the land in dispute.

It appears that the trial court vide order dated 30.10.2002 directed the suit to proceed ex parte against the defendant respondent. The plaintiff appellant in ex parte evidence, filed an affidavit paper No. 22-G-2 of his wife Smt. Kishan Pyari. No other documentary evidence whatsoever was filed by him in support of his case. On the basis of above documents, the trial court recorded a finding of fact that though plaintiff appellant had claimed himself to be the owner and in possession over the land in dispute 44" x 18 1/2". The court below noted that plaintiff appellant in his pleadings has neither stated as to since when and how he has come into possession of the aforesaid land nor he proved his ownership over it by oral and documentary evidence. The trial court further recorded a finding of fact that the plaintiff appellant had concealed material facts from the Court and had also concealed the number of the land/plot in dispute. Per contra, the defendant respondent had filed paper No. 16G, khatauni establishing that his name has been recorded as land holder of the aforesaid plot.

After considering the plaint allegations and after perusal of the record, the trial court concluded that the plaintiff had failed to prove his case of ownership and possession over the plot in dispute. The Court further held that in the absence of any evidence to the contrary, it cannot be said that 2,000 bricks, fodder cutting machine and water tape belonged to the plaintiff and in the circumstances, the suit was dismissed ex parte against the plaintiff vide judgment and decree dated 29.8.2003.

Aggrieved by dismissal of his suit, the plaintiff appellant filed Civil Appeal No. 35 of 2003, Karan Singh v. Sanjeev Kumar, challenging the validity and correctness of the aforesaid judgment and decree by which the trial court after consideration of the affidavit filed by the plaintiff''s wife had dismissed the suit in toto.

After noting contentions of learned Counsel for the parties in appeal, the first appellate court held thus:

I have carefully heard the contentions raised from the side of both plaintiff appellant and defendant-respondent and have perused the record including the impugned judgment and order dated 29.8.2003. From a perusal of the judgment and decree impugned under this appeal and the record as well it is self evident that learned court below was persuaded to dismiss the suit ex parte merely on the basis that plaintiff has failed to prove as to how and since when he came to be owner in possession over a piece of abadi land, situated in the village and therefore, dismissed the suit for want of evidence. Under the revenue law, it is well known that an abadi map of every village is prepared in which separate numbers are allotted to the separate pieces of land alongwith the name of the person or persons in possession over such land. At the time when the provisions of U.P.Z.A.L.R. Act, came into effect, the pieces of land found adjacent to the ancestral houses of farmers and other residents in the village which were being used by them as "sahan" or cattle ground etc. were settled with those residents u/s 9 of the said Act. Other lands of various public utility were shown and settled with Gaon Sabha and every piece of entire abadi land was required to be shown in the abadi map prepared under the relevant provisions of the said Act. The plaintiff appellant has nowhere in the plaint allegations mentioned the period since when or the manner in which he came to be owner-in-possession of the land in suit. Appointment of an Amin is made by the Court to obtain a report in respect of precise nature and extent of the disputed property. This report was never called to obtain evidence in respect of the possession of a party over the said land. In view of the fact that plaintiff appellant neither filed any abadi map or indicated the manner in which such land came to be settled under his ownership or possession, the learned court below appears to have rightly dismissed the suit on the grounds mentioned in the impugned judgment and order. My considered view, therefore, is that appeal lacks merit and is therefore, liable to be dismissed.

ORDER

The appeal is dismissed. The impugned judgment and decree dated 29.8.2003 is hereby confirmed. Let lower court record alongwith a copy of this judgment be sent back to the Court concerned.

January 13, 2010

Sd.

Special Judge, E. C. Act, Etah

Aggrieved by the aforesaid judgment and order dated 13.1.2010, the present second appeal has been filed, by which a relief has been sought to allow the second appeal of the plaintiff appellant with cost throughout and to set aside the impugned judgment and orders passed by both the courts below.

Contention of the counsel for appellant is that the plaintiff appellant had fully established his title and possession over the land in dispute but both the courts below have passed orders without considering this fact. By the judgment and orders impugned, they have arbitrarily, illegally and without application of judicial mind, rejected claim of the plaintiff appellant. According to the counsel for appellant, possession of the plaintiff appellant is proved by the report of the Commissioner dated 2.8.2001, but it has been overlooked by the courts below. It is also stated that the court below has manifestly erred in rejecting claim of the plaintiff appellant by recording incorrect finding that the plaintiff had not submitted any abadi map in respect of his ownership and possession. The abadi map prepared under the U.P.Z.A. and L.R. Act, shows settlement of every abadi or sehan land as well as land belonging to Gaon Sabha.

I have heard the counsel for the plaintiff appellant and have perused the record. It is apparent from perusal of the trial court Judgment that the plaintiff appellant had not submitted any oral and documentary proof in support of his claim. In fact he totally failed to prove that he was owner and in possession 6f the land in dispute. The trial court has also come to a conclusion that the plaintiff had not come with clean hands by concealing the plot numbers and had also not been able to establish that the bricks on the land in dispute, fodder cutting machine and water tape belonged to him. These facts could have been proved by the plaintiff appellant before the first appellate court by adducing additional evidence. However, it was not done. He had claimed himself to be the owner in possession over the disputed piece of abadi land which he claimed was being used for cutting fodder by fodder cutting machine installed there and for keeping other agricultural instruments. He also claimed possession on the basis that he had stacked 3,000 bricks on the said land and was making construction, the defendant tried to cause hindrance.

The first appellate court also recorded a finding that abadi map of every village is prepared in which separate numbers are allotted to the separate pieces of land alongwith the name of the person/persons who are in possession over such land and confirmed the finding recorded by the trial court holding that the plaintiff appellant had failed to show that the land in dispute had been settled with him u/s 9 of the U.P.Z.A. and L.R. Act or that he was owner in possession thereof. The court below also noted the fact that the plaintiff appellant also could not establish the fact of his being owner and in possession either before the trial court and even in the appellate court as to how he became owner or came into possession over the land in dispute and since when?

As regards the Amin''s report, the first appellate court has observed that this report was not called for obtaining evidence in respect of the possession of a party over the said land but was called for identification of extent of the disputed property and its precise nature. Thus, appeal filed by the plaintiff appellant has been rejected by the first appellate court confirming the judgment and decree of trial court in the suit.

Even before this Court in this second appeal, the plaintiff appellant has failed to prove his ownership, title and possession over the land in dispute. It appears from record that the defendant-respondent had started raising construction over the land in dispute and the plaintiff who is his uncle claiming the land to be their filed the suit. There is documentary evidence in favour of the defendant-respondent in respect of possession over the land in dispute whereas there is no basis for claim of the plaintiff appellant.

For all the reasons stated above, in my considered view, there is no illegality or infirmity in the impugned judgment and orders passed by the courts below and no substantial question of law arises for consideration in this second appeal. The appeal is accordingly dismissed No order as to costs.