Saiyad Nasir Miyan and Another vs Saulat Ali Khan

Shishir Kumar, J.—Heard learned Counsel for Appellants.

This is a Plaintiffs'' second appeal arising out of Suit No. 258 of 2004 filed by Plaintiffs and Appellate Court judgment and decree dated 30.11.2010 in Civil Appeal No. 11 of 2008 (Saulat Ali Khan v. Saiyad Nasir Miyan and another).

Facts arising out of suit as stated in the plaint are that Plaintiffs-Appellants are resident of Village Saijni Nankar, District Rampur. Suit is being filed in a representative capacity restraining Defendants from interfering in the path way of Gata No. 140 measuring about 0.152 hectares. It has been alleged that fifty to sixty years, same is being used as a Rasta by Plaintiffs and Defendant without any obstruction and in the map also same has been recorded. In the north, south and west there is a Arazi of Defendant as Gata Nos. 145, 16 and 17 in which there is a road. The Defendant illegally wanted to include this Rasta in his grove to restrain them. A suit was filed as Suit No. 370 of 1962 against the Gram Samaj which was decided against the Defendant on 18th February, 1964 and Defendant was restrained from interfering. An appeal was filed that was dismissed on 29.5.1964, therefore, Defendant is bound by the decree passed in the suit. Further averment was made in the plaint that near the disputed Rasta, a Mazar is situated and Plaintiff No. 1 being Mutwalli, looks after the said Mazar and various persons from the village as well as outside the village comes for that purpose. It was on 21.5.2004 the Defendant forcibly wanted to take possession of this Rasta, hence the suit.

Defendant filed a written statement denying the allegations made in the plaint with an allegation that no cause of action arises against Defendant being fact that Defendant is the owner of Gata Nos. 14, 16, 18 and 145 and is in possession of the said property. In the same Gata Nos. 142, 16 and 145, there is a grove. In Gata No. 17 there is a private grave-yard which start from Gata No. 17 and goes towards north and then from west to north. In the revenue record, Gata No. 16 some area was shown less. Then an application for rectification was filed and that was registered as Case No. 32 of 1998-99 which was decided in his favour on 22.8.2001 and that was accordingly corrected and the present Plaintiff was the party to the said proceeding and that was decided after hearing both the parties. An application was filed for cancellation of the said order dated 22.8.2001. The said application was rejected by order dated 11.10.2002 and the area was corrected on the basis of the order. As the Plaintiff No. 1 wanted to take illegal possession of Gata No. 140, therefore, he filed Suit No. 91 of 1997 and after filing written statement, the said suit was dismissed by order dated 22.5.2000. An appeal has also been dismissed by order dated 13.5.2002. An allegation to this effect that Defendant wanted to include the public pathway in his grove, is incorrect.

A clear denial has been made in para 4 of the written statement. As regards the decree, if any, in suit No. 370 of 1962 and Appeal No. 39 of 1964 that cannot be taken into consideration in view of fact that after the decree in the year 1973, the consolidation proceeding started and finished in 1986. Therefore, any order passed earlier to the consolidation proceeding will become null and void. Various issues were framed and one of the issues was regarding the fact whether Gata No. 140 is a public pathway. Trial Court after discussing the finding only on the basis that Defendant has admitted that Arazi No. 140 measuring about 0.152 hectare is recorded as public pathway, therefore, it is an admission of Defendant and on that basis, the suit has been decreed vide its judgment and decree dated 10.1.2008.

Defendant filed an appeal. Court below after considering the statements of PW-1, DW-1 as well as DW-2 has recorded a finding that from the revenue record, it is clear that Gata Nos. 17, 18, 14, 16 and 145 is the property of Defendant-Respondent and after doing measurement in the year 2009, Pucca Dhipabandi has been done. Therefore, if in the Khatuni of 2004 it is recorded as a Rasta it cannot be accepted that it is a public path way. The Appellate Court has discussed the issue and has recorded a cogent finding that the trial court has not discussed the issue and has recorded a cogent finding and the trial court has not discussed regarding revenue records and Pucca Dhipabandi and therefore has committed an error that it is a public pathway. A finding has has been recorded that another Pucca Rasta is available for going towards Mazar from plot Nos. 123 and 124. It is being confirmed by the witness of Defendant. Taking into all these considerations of the fact that if any Pucca Rasta is available for the purposes of going towards Mazar and Plaintiff has failed to prove that it is a public pathway, taking into all these consideration, appeal was allowed and the suit was dismissed. Hence, present appeal.

Learned Counsel for Appellants submits that from perusal of the trial court judgment as there is an admission by Defendant-Appellants, therefore, that was the best piece of evidence and that cannot be reversed without any cogent finding. Further Plot No. 140 does not belong to Defendant, therefore, he cannot have any objection.

After hearing learned Counsel for Appellants and after perusal of relevant record and the Judgments, I am of opinion that admission as alleged by the Appellants cannot be said to be a cogent evidence when there are relevant records to show that it is not a public pathway. The Appellate Court has recorded a cogent finding on the basis of relevant record that DW-2 in his statement has submitted that two or three years before it was measured and in the north and west of the pathway, there is a grove of Saulat Ali Khan and in the south his plot exists and this disputed path way finishes in the south of his plot. There is another Pucca Rasta for going towards Mazar. Further finding has been recorded that in 2009, Dhipabandi has already been done, therefore, if it is recorded in the year 2004 then it cannot be taken into consideration. As regards, contention regarding any order in Suit No. 390 of 1962, trial court as well as Appellate Court has not discussed the issue and has not recorded any finding. Therefore, it appears that judgment in that case was not relevant, therefore, Plaintiffs-Appellants itself has not discussed or appears to press that issue.

In view of aforesaid facts and circumstances, I am of view that finding recorded by court below is a finding of fact based on evidence on record after consideration of statement of the witness, therefore, no substantial question of law is involved. This appeal lacks of merit and is hereby dismissed.

10 .No order as to costs.