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SMT.SONIA versus BIDHA & OTHERS

High Court of Judicature at Allahabad

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Smt.Sonia v. Bidha & Others - SECOND APPEAL No. 41 of 1993 [2007] RD-AH 13927 (13 August 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 27

Second Appeal No. 41 of 1993

Smt. Sonia.........................................................Plaintiff-appellant

Vs.

Bidha and others ..................................Defendant-respondents

Hon'ble Pankaj Mithal,J.

Heard learned counsel for the parties.

The plaintiff appellant instituted an original suit No. 90 of 1987 against the defendant respondents restraining them from interfering in their possession over the land in dispute shown by letters ABCD in the plaint map situate in village Bagarpur, Pargana & Tahsil Garhmukteshwar, District Ghaziabad.

The aforesaid suit was brought on the allegations that plaintiff appellant is the owner of the land in dispute. She had purchased the same from one Smt. Ram Kali for value by a registered sale deed dated 3.2.1987. However according to the defendant respondents Smt. Ram Kali was not the owner of the land in dispute and therefore she had no right to execute the sale deed and as such plaintiff appellant gets no valid rights over the same.

The defendant respondents through the written statement also set up a counter claim and challenged the sale deed dated 3.2.1987 alleged to have been executed by aforesaid Smt. Ram Kali in favour of the plaintiff appellant. Accordingly, a prayer for cancellation of the sale deed was made.

The trial court vide judgment and order dated 12.8.1991 decreed the suit for permanent injunction holding that Smt. Ram Kali was the owner of the land in dispute and therefore she had validly executed the sale deed. The land in dispute was in possession of one Kotal since before the abolition of Zamindari. On the death of Kotal it devolved upon his son Nanka and on his death upon his wife Smt. Ram Kali. However in the civil appeal No. 104 of 1991 preferred by the defendant respondents, the appellate court held that the plaintiff appellant has utterly failed to prove that Smt. Ram Kali was the owner of the land in dispute. Therefore the appeal was allowed after setting aside the findings of the trial court and the suit for permanent injunction was dismissed. The counter claim for cancellation of the sale deed was decreed and the sale deed dated 3.2.1987 was ordered to be cancelled.

At the time of admission the appeal was admitted on the following substantial question of law:-

Whether the learned first appellate court has wrongly rejected the documents relied upon by the plaintiff appellant?  

Learned counsel for the appellant in support of the above substantial question of law formulated in the appeal submitted that the lower appellate court has wrongly rejected the documents namely the voter list and the Kutumb register produced in evidence by the plaintiff appellant and thus the finding that the plaintiff appellant has failed to prove that Smt. Ram Kali was the owner of the land in dispute stand vitiated.

At the very out set, before considering the above submission it may be clarified that the lower appellate court has not rejected the above documents but has only refused to place reliance upon them. The voter list only demonstrate that Kotal was the resident of village Bagarpur. Kutumb register only proves that Nanka to be the son of Kotal and Smt. Ram Kali to be the wife of said Nanka. However the said documents are not pieces of evidence to prove the title or owner ship of Smt. Ram Kali over the land in dispute. Therefore, in my opinion the lower appellate court committed no error in holding that the voter list is not a document by which ownership of the land in dispute can be proved. The lower appellate court in respect of Kutumb register stated that  a copy of the kutumb register as produced has not been certified in accordance with law and as such is inadmissible. I find no error of law even in the above conclusion of the lower appellate court.

The very fact that the aforesaid two documents are not the documents sufficient to prove the ownership and title of Smt. Ram Kali over the land in dispute, I think, the lower appellate court committed no error of law in not placing the reliance upon them for the purposes of determining the title of Smt. Ram Kali over the land in dispute.

Learned counsel relief upon certain authorities namely AIR 1972 Orrissa 158 (Kirtan Sahu Vs. Thakur Sahu and others), AIR 1980 Allahabad 174 (Smt. Aina Devi Vs. Bachan Singh and another), AIR 1991 Orrisa 166 (Nalandhar Mahapatra and antoerh Vs. Seva Dibya and others) to show that electoral roll is a public document, the certified copy of which does not require formal proof and is therefore admissible in evidence. There is no dispute about  the admissibility of the electoral roll in this case. Here the issue is that such electroal roll is not a document of title and is not a piece of evidence which goes to prove the title over the land in dispute. Therefore, none of the case law cited above helps the plaintiff appellant.  

  The lower appellate court  also records that the statement of PW-2 Smt. Ram Kali does not inspire confidence as in the cross examination she failed to describe the manner in which the land in dispute had come in possession of her father- in- law Kotal. There is no document on record and a finding of the trial court that the land in dispute had vested in Kotal under Section 9 of the U.P.Z.A. & LR Act. Therefore, in the absence of such a finding the land in dispute can not devolve upon Smt. Ram Kali.

In the result the rejection of the aforesaid two documents by the lower appellate court is not at all material under the facts and circumstances of the case to record a finding with regard to ownership of the land in dispute. The plaintiff appellant as such failed to discharge her burden of proving that she had acquired valid right in the land in dispute from Smt. Ram Kali. Since she has failed to prove that Smt. Ram Kali was the owner of the land in dispute, the sale deed dated 3.2.1987 has rightly been cancelled.

In view of the aforesaid circumstances there is no error of law or any other illegality in the judgment and order of the lower appellate court. The lower appellate court for the reasons recorded has rightly been set aside the findings of the trial court. Accordingly, I do not find any substance in this second appeal which is dismissed as such with no order as to costs.

13.8.2007

SKS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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