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TAHSEEN AHMAD AND ANR. versus ABDUL WASI AND ORS.

High Court of Judicature at Allahabad

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Tahseen Ahmad And Anr. v. Abdul Wasi And Ors. - SECOND APPEAL No. - 1107 of 1996 [2007] RD-AH 16351 (4 October 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. 1107 of 1996

Tahseen Ahmad and another Vs. Abdul Wasi and others

~~~~

Hon. Dilip Gupta, J.

The plaintiffs have filed this Second Appeal for setting aside the judgment and decree passed by the learned Xth Additional District Judge, Kanpur Nagar by which the Civil Appeal, that had been filed by the plaintiffs, was dismissed.

The Original Suit had been filed for permanent injunction to restrain the defendants from interfering with the possession or dispossessing the plaintiffs from the ground floor of premises No. 90/32-A, Phoolwali Gali Kanpur. It was alleged that plaintiff No.2 and defendant No.2 had jointly purchased plot of land from one Smt. Shahazadi Begum through a registered sale-deed dated 14.8.1952. Defendant No.1 is the younger brother of plaintiff No.2 and as a gesture of goodwill, plaintiff No.2 transferred his half share in the aforesaid plot to defendant No.1 on 21.4.1966 but even after that plaintiff No.2 remained and continued in possession of the said plot. It was also stated that some times in the year 1974 it was agreed between the parties that plaintiff No.2 would raise constructions on the plot at his own costs for his use and enjoyment and as and when the defendants desired to have possession of the constructions, they would pay the value of the constructions to the defendant No.2 or plaintiff No.2 would pay market value of the land to the defendants. The plaintiff No.2 thereafter raised constructions on the ground floor and the first floor and started manufacturing business with his son plaintiff No.1. Defendant No.1, however, is intending to throw away machines of the plaintiffs and though defendant No.2 is residing at Agra but as he is the co-owner of the land, he has been impleaded as a proper party.

A written-statement was filed separately by defendant Nos. 1 and 2. In the written-statement filed by defendant No.1, it was specifically denied that as a gesture of goodwill, the plaintiff No.2 transferred half of the disputed plot to defendant No.1. It was stated that plaintiff No.2 was in need of money, and, therefore, requested defendant No.1 to purchase the half share of the plot in dispute and, accordingly, plaintiff No.2 sold half share of the plot to defendant No.1 for a consideration of Rs. 1000/- through the registered sale-deed dated 21.4.1966. Thereafter the constructions were raised by defendant Nos. 1 and 2. It was stated that defendant No.1 has been carrying his repairing shop and in order to augment his income, he installed a workshop of cutting and buffing the Chappals in the disputed premises. A separate written-statement was filed by the defendant No.2.

The Trial Court, on the basis of the evidence, recorded a categorical finding of fact that the plaintiffs were neither the owners of the premises in dispute and nor were they in possession of the disputed property. In fact, after plaintiff No.2 had sold his half share to defendant No.1 through the registered sale-deed dated 21.4.1966 for a consideration of Rs. 1000/-, the defendants had raised constructions. It has also been found that there was no mutual agreement between the parties that plaintiff No.2 shall raise constructions and if the defendants wanted, they could ask the plaintiffs to vacate the premises after paying the costs of the constructions. The Lower Appellate Court has confirmed these findings.

At the time of the admission of this Second Appeal, the following substantial questions of law were framed:-

1.Whether the admission made by one set of defendants as to the possession of the plaintiffs has been rightly ignored by the courts below and if such admissions were binding against the other set of defendants; and

2.Whether the plaintiff could have defended his possession, even if unlawful, against any onslaught, except by process of law.

Learned counsel for the appellants placed much emphasis on the written-statement filed by defendant No.2 in which it was stated that though the plaintiff No.2 had no right in the property as he had sold his half share to defendant No.1 but he had forcibly occupied. He, therefore, submitted that defendant No.2 had admitted that the plaintiffs were in possession of the property and so the relief claimed could not have been granted.

Learned counsel for the respondents, however, submitted that the Courts below have recorded a categorical finding of fact that the plaintiffs were not in possession of the disputed premises and there is no perversity in the said finding.

It is not in dispute that plaintiff No.2 and defendant N0.2 were the joint owners of the land over which the constructions had been raised. It is also not in dispute that plaintiff No.2 had sold his half share in the property to defendant No.1 by a registered sale-deed for a consideration of Rs. 1000/-. It is, however, the contention of plaintiff No.2 that subsequently some oral agreement was arrived at between the parties permitting plaintiff No. 2 to raise constructions on the said plot and in the event defendants desired possession of the constructed area, then they could take it after payment of the cost of construction. The Courts below have disbelieved the oral agreement as no evidence could be led to establish it. The Courts below have also recorded a finding that the constructions were subsequently raised by the defendant no.1 and defendant No. 1 also installed a workshop of cutting and buffing the chappals to augment his income along with plaintiff No. 1 as a partner as plaintiff No. 1 was unemployed. The Courts below have recorded a finding of fact that plaintiff No. 2 could not prove that he had raised construction and on the other hand there was sufficient material to establish that defendants had raised constructions.

It is in this light that the statement made by defendant No. 2 that the plaintiff had forcibly taken possession has to be examined. It has come in evidence that defendant No. 2 was residing at Agra and had no idea of the factual position. The Lower Appellate Court has explained this statement by observing that defendant No. 2 merely intended to say that if plaintiff No. 2 had taken possession it was illegal as he had no authority to do so and the issue as to whether the constructions had been raised by plaintiff No. 2 or defendant No. 1 and who was in possession had to be decided on the basis of the statements and the evidence led by them. The observations of the Court below cannot be said to be without any basis. Defendant No. 1 had come out with a categorical case that he had raised the constructions and was in possession of the same and there was sufficient evidence before the Court to come the conclusion that he had raised the constructions on the disputed land and was in possession whereas the plaintiff had failed to prove the same.

There is, therefore, no merit in this Second Appeal. It is, accordingly, dismissed. Interim order, if any, stands vacated. There shall be no order as to costs.

Dt/- 4.10.2007

Sharma


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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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