Sheo Prasad and Others vs Ayodhya Prasad and Another

Tarun Agarwala, J.

This is the defendant''s second appeal filed against the lower appellate court''s order. The facts leading to the filing of the appeal is, that the plaintiff filed a suit for demolition of the construction existing in plot no.100 and 106; for the removal of the Charni and for the closure of the Nabdan raised by the defendant. The contention of the plaintiff was that the plots in question originally belonged to Jaishree, who died issueless and who was the ancestor of the plaintiff. The plaintiff contended that he is the owner and in possession. The plaintiff was out of the village in connection with the service and, in his absence, the defendant raised the Charni and changed the flow of Nabdan. Accordingly, a notice was given and inspite of the receipt of the notice, the construction was not removed and consequently, the suit was filed.

The defendant contested the suit contending that they had not raised any new Charni over the land in dispute and that it was an old one. Initially it was a chhappar but subsequently it was converted into a Khaprail. It was also stated that the Charni was being used for the last 25 years and the petitioner had got the land from the plaintiff''s ancestor Patandeen. The defendant contended that they have been in possession for the last 25 years and that no objection whatsoever was raised by the plaintiff and accordingly, the suit was liable to be dismissed on the ground of laches.

On the basis of the pleadings, the following issues were framed by the trial court.:

Whether construction in suit is liable to be demolished as alleged?

2,Whether plaintiffs are owners of the land in suit as alleged,

Whether construction in suit exists in Shikmm plot no.100,106 and 170?

4.Whether the defendants no.1 and 2 are owners of the land in suit?

Whether the suit is barred by limitation?

Whether the suit is barred by estoppel as alleged?

To what relief if any are the plaintiffs entitled?

Whether the defendant flow the water of their Nabdan through the land in suit as alleged by the plaintiff?

Whether the Nabdan in suit caused nuisance to the plaintiff.

The trial court found that the alleged construction was existing in plot no.100 and that plot no.100 was originally owned by Jaishree who is the ancestor of the plaintiff. The trial court however, found that the defendants are in possession of this land for several years and that there was an old Charni existing on the spot which was subsequently modified by putting Khaprail. The trial court consequently found that since long possession was with the defendant, he had became the owner of the land and consequently dismissed the suit.

The plaintiff being aggrieved, filed an appeal which was allowed and the judgment of the trial court was set aside and the suit was decreed directing the plaintiff to remove the construction so raised on the plot No.100 and also directed to restore the flow of nabdan as prayed in the plaint failing which it would be open to the appellant to move the court for the removal of the construction in dispute and flow of the nabdan.

The lower appellate court by reversing the judgment came to the conclusion that no proof had been filed by the defendant to indicate that their ancestors were given the land by the ancestor of the plaintiff. The lower appellate court found that there was no evidence to indicate that they were in possession over the land for the past 25 years and consequently came to the conclusion that the findings of the trial court was against the material evidence on record. The trial court further found that it was not the case of the defendant that they are in possession by adverse means or they had acquired the title by adverse possession.

The defendants, being aggrieved by the order of the appellate court,has filed the present second appeal.

Heard the learned counsel for the parties at some length.

The Court finds that admittedly the land in question i.e. plot no.100 belonged to Jaishree, who is the ancestor of the plaintiff. The defendant appellant admits this fact but contends that the plaintiff''s ancestor gave the land to the father of the defendant. There is no record or evidence to prove this oral statement that the land was given by the plaintiff''s father to the defendant''s ancestor. In the absence of documentary evidence, the court has to see as to what evidence was led with regard to the possession over the land in suit.

The contention of the defendant was that they have been in possession for the past 25 years from the date of filing of the Suit. The suit was filed in the year 1964 and therefore, the defendant''s claim to be in possession prior to the enforcement of U.P. Zamindari Abolition & Land Reforms Act which come into effect from 1.7.1952. In order to claim the benefit of Section 9 of U.P.Z.A.&L.R. Act, the defendant must prove that they have been in possession prior to 1952. The evidence which has come on record indicate that the defendants have been in possession for last 10 years, whereas, according to the plaintiff, it was six years. Whatever it may be. If the contention of the defendant is correct that they were in possession for the last 10 years before the date of the filing of the suit i.e. 1954, possession was still required to be proved by them prior to 1.7.1952. Since this fact has not been proved the land cannot be settled u/s 9 of U.P.Z.A.& L.R. Act.

There is another aspect of the matter. The defendant''s case was not that plot no.100 was their Sehan nor it was a case that plot no.100 was appurtenant to their house. Consequently, the benefit of Section 9 of U.P.Z.A.& L.R. Act cannot be availed of by the defendants.

In the light of the aforesaid, the Court find that the title of the land, or possession of the land was proved by the defendants. In the light of the aforesaid, the court does not find any error in the order of the lower appellate court. The court is of the view that no substantial questions of law arises for consideration.

The appeal fails and is dismissed.