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RAM SWAROOP (DECEASED) & OTHERS versus UDAI CHANDRA & OTHERS

High Court of Judicature at Allahabad

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Ram Swaroop (Deceased) & Others v. Udai Chandra & Others - SECOND APPEAL No. - 913 of 2007 [2007] RD-AH 14543 (27 August 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. 27

Second Appeal No. 913 of 2007

Ram Swaroop (Deceased) & Ors.,

Vs.

Udai Chandra & Ors.,

*******

Hon. Dilip Gupta, J.

The defendant No. 1 has filed this Second Appeal for setting aside the judgment and decree passed by the Courts below.

The Original Suit had been filed by the plaintiff Udai Chandra for permanent injunction that the plaintiff was entitled to remain in possession over the property marked by letters A, B, C and D in the plaint map consisting of plot Nos. 44, 45 and 46 and that defendant Nos. 1 to 4 should be restrained from taking possession or interfering with the possession of the plaintiff over the aforesaid property. The Suit was decreed by the learned Additional Civil Judge (Senior Division) by the judgment and decree dated 22nd February, 2001. Feeling aggrieved, defendant No. 1 alone filed Civil Appeal No. 55 of 2001 which was dismissed by the learned Additional District Judge (Mathura) by means of the judgment and order dated 10th August, 2007.

The dispute centers around Khasra No. 2846 measuring 81 decimals. Out of this area of 81 decimals in Khasra No. 2846, 26 decimal was purchased by one Munshi Lal by means of the registered sale deed dated 16th May, 1947 from its owner Naththan while the remaining area of 55 decimals was purchased by defendant No. 1 Ram Swaroop by means of the registered sale deed dated 15th July, 1957 from Naththan. Munshi Lal then sold this 26 decimal of land to Kishan Sahai and the plaintiff subsequently purchased this 26 decimals of land situate in Khasra No. 2846 from Kishan Sahai.

The case set up by the plaintiff was that a Society namely Arya Nagar Society was constituted by certain persons. The Society carved out plots from the land of the Society including 26 decimals of land situate in Khasra No. 2846 and on the basis of the plan, a registered deed dated 5th December, 1951 was executed and the plots were allotted to the members. Plot No. 44 was retained by the Society while Plot Nos. 45 and 46 were allotted to Sri Tika Ram and Sri Kishan Sahai respectively. Tika Ram and Kishan Sahai took possession of their respective plots. Towards east of these three plots there existed 18 feet wide road which joined to the bypass road while to the west there was a 10 feet wide road. Plot No. 44 was situated to the extreme North and it was given on rent to the plaintiff by the Society. The plaintiff obtained possession of Plot No. 45 in the year 1953 on the basis of an agreement to sell executed with Tika Ram and defendant No. 1 who was the heir of Tika Ram thereafter executed a lease deed in favour of the plaintiff on 20th September, 1998. A sale deed was also executed by Kishan Sahai in favour of the plaintiff in respect of Plot No. 46 on 8th October, 1971. The plaintiff, therefore, claimed that he was in lawful possession of Plot Nos. 44, 45 and 46.

I have heard learned counsel for the appellant Sri Dinesh Pathak at the admission stage. Sri Ravi Kiran Jain, Senior Advocate assisted by Sri Manish Nigam learned counsel have been heard for the plaintiff respondent No. 1.

The main issue that was required to be decided in the Suit was whether these disputed plots bearing Nos. 44, 45 and 46 were contained in that area of 26 decimals of land situated in Khasra No. 2846 and whether the plaintiff was in lawful possession of these plots. The contention raised by defendant No. 1 was that the aforesaid disputed plots were contained in 55 decimals of land which had been purchased by defendant No. 1 in the year 1957 through the registered sale deed. Defendant No. 1 contended that the sale deed executed in respect of the 26 decimals of land did not contain the boundaries as a result of which it was not possible to identify the land and, therefore, it was necessary that a survey should have been conducted for demarcating that 26 decimals of land. The Courts below have recorded a categorical finding of fact that it was not necessary to get the survey done as, on the basis of the evidence available on record, it was established that the disputed plots were contained in 26 decimals of land of Khasra No. 2846 which had been purchased by the plaintiff. For the said purpose, reliance was placed upon the registered deed dated 5th December, 1951 in which various plots had been carved out by the Arya Nagar Society which included 26 decimals of land. The Trial Court also placed reliance upon the map that had been prepared in which to the east of the disputed plots 18 feet wide road was shown and to the north-east of the disputed plots, the plot of Vijay Shanker was shown which had been purchased by defendant No. 1 in the year 1957. The Courts also noticed that when defendant No. 1 purchased 55 decimals of land in the year 1957, Arya Nagar Society had already been constituted and the plots had been demarcated and, therefore, the plaintiff very well knew where the 26 decimals of land in Khasra No. 2846 was situated but yet he purchased 55 decimals of land by showing wrong boundaries. The Courts on the basis of the evidence, recorded a categorical finding that the disputed plots were situated in that area of 26 decimals of land of Khasra No. 2846 which had been purchased by the plaintiff and that defendant No. 1 was not the owner of the disputed plots on the basis of the sale deed executed on 15th July, 1957.

Learned counsel for the appellants raised the same issue that had been raised before the Trial Court and the Appellate Court that in such circumstances a survey should have been conducted in order to establish the location of 26 decimals of land in Khasra No. 2846.

As noticed above, the Courts below, on the basis of the oral and documentary evidence, have recorded a categorical finding of fact that the disputed plots were situated in that area of 26 decimals of land that had been purchased by the plaintiff and so there was no necessity of getting a survey done.

Learned counsel for the appellants has not been able to substantiate that from the evidence on record it was not possible to conclude that the disputed plots were contained in that area of 26 decimals of land and all that he contends is that it was imperative for the Court below to have got the survey done to establish the location of this 26 decimals of land that had been purchased by the plaintiff. This contention cannot be accepted as, in such circumstances, it was not necessary to get the survey done.

This Second Appeal, therefore, deserves to be dismissed at the admission stage as no substantial question of law arises for consideration. It is, accordingly, dismissed.

Date: 27.8.2007

NSC


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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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