Raghuraj and Others vs Smt. Jwalamukhi

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for both the parties at the admission stage. This is defendants'' second appeal arising out of O.S. No.69 of 1986. The suit was decreed by First Additional Munsif, Shikohabad on 16th September, 1991. Against the said decree defendants appellants filed Civil Appeal No.23 of 1991 which was dismissed by III Additional District Judge, Firozabad on 25.10.2000, hence this second appeal.

The suit was decreed for demolition and possession. Property in dispute denoted in the plaint map by letters A, B, C, D was shown to be situate in north of the plaintiffs'' house which was denoted by letters G, B, E, F and it was claimed that the land in dispute was sahan of plaintiff''s house. It was further asserted that the house of the defendants was situate at some distance from the land in dispute and in the west of the house of plaintiff, house of Smt. Asha Devi was situate, thereafter there was a rasta and towards south west corner of the rasta, house of the defendants was situate. It was also asserted that plaintiff reached the main road through land in dispute and her door opened in the land in dispute and she was using this land as her sahan for tying cattles, storing woods etc.

Through the amendment in the plaint it was asserted that during pendency of the suit defendant had constructed a pacca kotha over the land in dispute and plaintiff was compelled to use the part of chabootara of Asha Devi for ingress and outgress with her permission. Plaintiff asserted that the land in dispute settled with her u/s 9 of U.P.Z.A. & L.R. Act and it was also stated that she had got an Ijazatnama dated 10.10.1946 from the then Zamindar Waliullah.

Both the courts below held that plaintiff had proved her right over the land in dispute.

The original defendant Raj Kishore since deceased and survived by the appellants asserted that the land in dispute belonged to his maternal uncle Munshi Lal who 40 years before executed a Will as well as sale deed of the same in his favour. However neither the Will deed nor the sale deed was filed. This was a very vital omission and the courts below rightly drew adverse inference against defendant Raj Kishore due to it. Thrice commission was issued to the Amin and Advocate, however in the reports it was shown that just after the gate of plaintiff''s house towards north portion of the land in dispute was not plain. The level was higher at one place and lower at the other place and parnala and nalis were also flowing thereat. The contention of the defendants that a rasta intervened in between the land in dispute and the house of the plaintiff was disbelieved by both the courts below.

Much emphasis was placed by the defendants, before the courts below as well this court upon the inadmissibility of the Ijazatnama of 1946 and it was contended that the said Ijazatnama had been got proved by a witness. Even if Ijazatnama is ignored, land in dispute being adjacent to the plaintiff''s house and used by her as sahan since Zamindari Abolition stood settled with her u/s 9 of U.P.Z.A. & L.R. Act. Plaintiff''s possession was found by both the courts below. Defendant based his claim upon a Will deed and a sale deed which he did not file.

Accordingly, I do not find any error in the findings of the courts below which are basically findings of fact. No such question of law has wrongly been decided by the courts below, reversal of decision of which would warrant setting aside of the impugned judgments and decrees.

Accordingly, there is no merit in this appeal hence it is dismissed under Order XLI Rule 11, C.P.C.