Ram Chandra Prasad Srivastava and Others vs Kalika and Others

Rajes Kumar, J.—Present second appeal is against the order of the IInd Additional District Judge, Ballia dated 30th March, 1977 arising from the Suit No. 331 of 1969.

Plaintiffs-appellants filed the suit for permanent injunction restraining the defendants-respondents from causing any interference in the plaintiffs possession over the disputed house. It was claimed that the house was ancestral property and was in possession of the plaintiffs and without the partition, defendants-respondents were raising the construction. The trial court vide order dated 13th March, 1976 dismissed the suit with costs. It has been held that the plaintiffs have no share in the disputed premises and the disputed house was not the ancestral property of the plaintiffs and it was the self acquired property of defendant No. 4 only. It was also observed that the land over which the baithaka which is in dispute has been constructed formerly belonged to Maharaja Dumraon from whom it was acquired by defendant No. 4, who subsequently constructed the house over the same from his self acquired funds. It has been observed that the plea of the defendant was supported by the statements of the witnesses and also by the evidences. The plaintiffs-appellants filed Civil Appeal No. 130 of 1976, which has been dismissed with costs. The appellate authority recorded the following findings:

The documentary evidence available on the record also speaks of the exclusive possession of deceased defendant No. 4 and is descendants over the house in suit. The extract of kutumb register (Ex. A-1) shows that the defendant No. 4 was residing in house No. 49 exclusively belonging to him. He had been paying the panchayat taxes. The electoral rolls prepared in the year 1960 and 1973 respectively (Exts. A-4 and A-5) also go to show that the defendant No. 4 was residing in house No. 49 whereas the plaintiffs Raghunath in house No. 45 and Bindhyachal Prasad in house No. 46 separately. No doubt, the name of the father of the defendant No. 4 has been wrongly written in the electoral rolls which is nothing but a clerical error. Sri Dharmnath (P.W. 2) stated that defendant No. 4 was in exclusive possession of an area of 1-1/2 or 2 bighas of land. Thus, the documents on record also suggest the inference that the house was exclusively owned and resided by the deceased defendant No. 4.

Sri Param Hans Rai (P.W. 3) hails from a different village. He states that he was posted as a Primary School teacher in the village during the period 1963-1968. Admittedly, the house in question was constructed decades before the year 1963. His testimony is of no avail. Sri Bindhyachal Prasad (P.W. 1) and Dharm Nath (P.W. 2) are the claimants of the share in the house in question and are the interested persons. Their so object seems to be to snatch whatever they can afford from the vendees in a bargain for their own gain. The learned trial court has considered in detail that the land was acquired by the defendant No. 4 and constructed the house in question. His findings are well considered and well appreciated. There does not appear to be any scope for disagreeing with the findings recorded by him. As a result of what has been observed above, the appeal does not admit of any scope for interference with the judgment and decree in question, and it should be dismissed.

The present appeal has been admitted on substantial question of law arises from ground Nos. 2, 3 and 5 which reads as follows:

Because the courts below did not even enter the question of the ownership of the land on which the disputed house was constructed.

Because the courts below failed to decide whether the house in dispute was constructed prior to private partition of the family or after it.

Because there having been no partition in the residential house mere exclusive possession of defendant No. 4 could not apprise of his share of the house as the possession by one co-sharer as the possession by all co-sharers.

From the aforesaid grounds, the substantial question of law which arises is that whether the court below without entering into the question of ownership of the land on which the disputed house was constructed, prior to private partition of the family has rejected the claim and dismissed the suit.

Heard Sri Sankatha Rai, learned senior advocate appearing on behalf of the appellants and Sri C.K. Rai, learned Counsel appearing on behalf of the respondents.

Learned Counsel for the appellants submitted that without entering into the question of ownership of the land on which the disputed house was constructed both the courts below have held that the house in question was not the ancestral property and was self acquired property of defendant No. 4. He submitted that burden lies upon the person to prove his claim who alleges that he earned property from his own sources. In support of the contention he relied upon the decision of Lucknow Bench of this Court in the case of Shyam Lal and Ors. v. Assistant Director of Consolidation, Gonda 2007 (102) RD 311 . He further submitted that u/s 100 of the C.P.C. this Court has jurisdiction to interfere with the concurrent findings of courts below if there is wrong appreciation of evidence and wrong placement of onus of proof. In support of his contention he relied upon the decision of the Apex Court in the case of Krishna Mohan Kul @ Nani Charan Kul and Another Vs. Pratima Maity and Others, . He further submitted that the vague denial of the facts in the written statement may amount to have acceptance of the fact. In support of his submission relied upon the decision of the Apex Court in the case of Badat and Co. Vs. East India Trading Co., .

Learned counsel for the respondents submitted that the dispute before the courts below was about the disputed house. No issue was framed relating to the land. He submitted that both the courts below have considered the evidences adduced and the statements of the various persons and have recorded the findings of fact that the house in dispute was not ancestral property of the plaintiff and was the self acquired property of the defendant No. 4. He further submitted that on the basis of the evidences adduced the courts below observed that the land over which the baithaka was constructed formerly belonged to Maharaja Dumraon from whom it was acquired by defendant No. 4. He subsequently constructed the house over the same from his self acquired fund. Therefore, the plea of the plaintiff that the land over which the construction was made was an ancestral property is absolutely incorrect and has no leg to stand.

I do not see any substance in the argument of the learned Counsel for the appellants. The issues which have been framed were as follows:

Whether the plaintiffs have any share in the disputed premises?

Whether the disputed house is ancestral property of plaintiffs and defendant No. 4, or the defendant No. 4 is in exclusive acquisition and is self acquired property?

The issue was, therefore, relating to the disputed house and no issue was framed raising the claim that the land was the ancestral property over which the construction was made.

From the perusal of the order of the first appellate authority, it reveals that no argument has been raised that the land was ancestral property over which the construction was made. The order of the trial court reveals that the evidences has been adduced and the statements have been recorded and on the basis of such evidences, it has been held that the plaintiffs have no share in the disputed premises and that the disputed house was not the ancestral property of the plaintiffs and was self acquired property of defendant No. 4. It has been observed that the land over which the baithaka has been constructed formerly belonged to Maharaja Dumraon from whom it was acquired by defendant No. 4, who subsequently constructed the house over the same from his self acquired funds. Both the authorities below have held that the plaintiff was never in possession of the house in dispute. The findings of both the authorities are finding of fact which does not require any interference. findings are based on the evidences on record are neither illegal or perverse.

In my view the decisions cited by the learned Counsel for the appellants referred hereinabove are not applicable to the present case on the facts and circumstances stated above and are clearly distinguishable on facts.

In view of the above, the appeal has no merit and is, accordingly, dismissed.