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Suleman v. Amiruddin - SECOND APPEAL No. 3050 of 1981  RD-AH 9380 (16 May 2007)
Judgment reserved on 25.4.2007
Judgment delivered on 16.5.2007
Second Appeal No. 3050 of 1981
Suleman & Ors.
Hon. Dilip Gupta, J.
This Second Appeal has been filed by the defendants for setting aside the judgment and decree of the learned Ist Additional District Judge, Gorakhpur by which the appeal has been allowed and the suit for mandatory injunction has been decreed with a direction to the defendant-respondents to remove the hencoop situated in the disputed land within a period of three months failing which it would be open to the plaintiff to get them removed through the process of Court. The suit was also decreed for possession over the site of the hencoop and for prohibitory injunction restraining the defendants from interfering with the possession of the plaintiff over the disputed land.
Original Suit had been filed by the plaintiff-respondent for prohibitory injunction and also for possession. The case set out in the plaint was that the disputed land having an area of 0.18 decimals in Plot No.62 was the Bhoomidhari land of Vidyadhar and others from whom it was acquired by the plaintiff by means of the registered sale deed dated 25th June, 1973. The defendants whose house was situated in the east at a short distance were desirous of purchasing the said disputed land but as they could not pruchase it, they made efforts to get the possession forcibly by erecting hencoop and cattle pegs. Proceedings under Section 145 of the Criminal Procedure Code were initiated which concluded with the finding that the entire land except the site of hencoop and cattle pegs were in the ownership and possession of the plaintiff. Taking advantage of the aforesaid finding the defendants made efforts to interfere with the possession of the plaintiff over the land and, therefore, the suit was filed.
The case set up by the defendants was that they were in possession of the entire land for a long period and their cattle pegs and well etc. were situated therein. They denied the possession and title of the Zamindar Vidyadhar and others and contended that the sale deed dated 5th June, 1973 executed in favour of the plaintiff was a sham transaction. They further pleaded that the suit was not maintainable in the Civil Court.
On the basis of the material on record the learned Munsif came to the conclusion that the disputed land could not be identified on the spot and that the plaintiff was not the owner in possession thereof. However, a finding was recorded that the suit was maintainable before the Civil Court and was not barred by Section 34 of the U.P. Land Revenue Act.
Feeling aggrieved, the plaintiff filed Civil Appeal No.289 of 1978 which was allowed. The validity of the finding recorded by the Trial Court that the suit was not barred under Section 34 of the U.P. Land Revenue Act was not challenged and, therefore, this finding of the Trial Court was confirmed by the Lower Appellate Court. The Lower Appellate Court framed the following five points for consideration :-
"1. Whether the plaintiff-appellant is the owner of the disputed land and was, at the time of the suit in possession of the whole of it, except the portion shown as M N O P and Q R S T, the sites of hencoop and cattle- pegs etc.?
2. Whether the said hencoop M N O P and the cattle- pegs etc. Q R S T are liable to be removed and the plaintiff and the plaintiff-appellant is entitled to regain possession over the sites thereof ?
3. Whether the land in question is not identifiable at the spot ?
4. Whether the suit is cognizable by the Civil Court ?
5. Whether the defendant-respondents have possessory title over the entire disputed land on account of their long standing possession over the same ?
In respect of Point No.3 which relates to identification of the disputed plot, the Lower Appellate Court came to the conclusion that it was identifiable on the spot and the finding to the contrary recorded by the learned Munsif was set-aside. In arriving at this finding the Lower Appellate Court noticed that though the boundaries relating to 0.18 decimals mentioned in the sale deed dated 25th June, 1973 executed by Vidyadhar and others in favour of the plaintiff were not mentioned but what was mentioned was the fact that one field carved out of Plot No.62 having an area of 0.18 decimals was the subject matter of the sale. On the basis of the Khasra extracts and the order passed by the consolidation authority read with corresponding table, the Lower Appellate Court concluded that the present Plot No.62 corresponds with the old Plot No.116 having an area of 1.18 Acres and that subsequently out of this area of 1.18 Acres, an area of 1 Acre was carved out as Plot No. 116/1 on which the name of the defendants were recorded as Sirdar while the remaining area of 0.18 decimals continued to remain recorded in the name of the transferors Vidyadhar and others as chief tenants and this was carved out as Plot No.62/5. The Lower Appellate Court, therefore, recorded a finding that it is this Plot No.62/5 having an area of 0.18 decimals which was sold to the plaintiff.
In respect of Point Nos. 1 and 5 the Lower Appellate Court observed that the disputed portion of the area of 0.18 decimals of Plot No.62/5 continued to remain the Bhoomidhari land of the vendors Vidyadhar and others until the transfer by means of the sale deed dated 25th June, 1973 to the plaintiff. Subsequently the names of the vendors were expunged and in the place the name of the plaintiff was mutated and the attempt made by the defendants to get the name of the plaintiff expunged was unsuccessful. It is in respect of this disputed land that the proceedings under Section 145 Cr.P.C. was initiated and the final order passed therein indicates that the plaintiff was in possession except that portion on which the hencoop and cattle pegs were situated which was in possession of the defendants. The Lower Appellate Court, therefore, concluded that on the basis of the sale deed, the plaintiff would have come into possession of the entire disputed plot as it cannot be conceived that he would get possession of the entire land except the scaterred and isolated part on which the hencoop and cattle pegs existed and, therefore, he was dispossessed from the hencoop and cattle pegs just before the attachment proceedings started. This was also corroborated by the evidence led by the plaintiff. The Lower Appellate Court, therefore, recorded a categorical finding that the plaintiff was the owner and was in possession of the whole of the disputed plot until he was dispossessed from that portion on which the hencoop and cattle pegs existed.
In respect of Issue No.4, the Lower Appellate Court held that the suit was for injunction and no question of declaration of the Bhoomidhari title of the plaintiff against the State Government or Gaon Sabha was involved and, therefore, the suit was maintainable before the Civil Court.
The Lower Appellate Court, therefore, allowed the appeal and the suit was decreed for mandatory injunction directing the defendants to remove the hencoop as shown on the Survey Plan and the suit was further decreed for possession over the sites of hencoop and for prohibitory injunction restraining the defendants from perpetually interfering with the possession of the plaintiff over the disputed land.
At the time of admission of the Second Appeal, the substantial questions of law that were framed are as follows :-
"Whether the lower appellate court has committed an error in interpreting the sale deed exhibit 1 in favour of the plaintiff as in the absence of any boundary of the plot sole as the area 18 decimals out of a total of 1 acre 18 decimals can be said to be identifiable.
Whether in the absence of the identity of the plot sole to the plaintiff the defendants being co-sharers in the plot are liable to be ejected."
I have heard learned counsel for the appellant and the learned counsel appearing for the respondents.
Learned counsel for the appellant submitted that the disputed land could not be identified and, therefore, in view of the decision of the Supreme Court in Shreepat Vs. Rajendra Prasad & Ors., JT 2000 (7) SC 379 it was not proper for the Lower Appellate Court to decree the suit without getting the identity of the land established by issuing a survey commission.
Learned counsel for the respondents, however, submitted that though the boundaries were not specifically mentioned in the sale deed but from the recital contained in the sale deed it was more than apparent that the sale deed was in respect of 0.18 decimals which was that portion of Plot No.62 which had been carved out as Plot No.62/5 after excluding the area of 1 acre from the original Plot No.62 measuring 1.18 Acres and it was on the basis of the Survey Plan that the Lower Appellate Court recorded this finding.
I have carefully considered the submissions advanced by the learned counsel for the parties.
In my opinion the Lower Appeal Court has given very cogent reasons in arriving at the conclusion that the the disputed land could be identified. It is not in dispute that in the sale deed there was a clear recital that one field carved out from Plot No.62 having a area of 0.18 decimals was the subject matter of the sale. It is also not in dispute that Plot No.62 corresponding with the old Plot No.116 had an are of 1.18 Acres and out of this area an area of 1 Acre was carved out as Plot No.116/1 on which the names of defendants were recorded as Sirdar while the remaining area of 0.18 decimals continued to remain recorded in the name of Vidyadhar and others as chief tenants and it is this area of 0.18 decimals which was subsequently carved out as Plot No.65/5. Thus, the area of 0.18 decimals in the sale deed is clearly referable to Plot No.62/5 measuring 0.18 decimals. It also needs to be mentioned that on the institution of the suit the site plan was prepared by the Court Amin on 9th February, 1976 and subsequently this was transposed on a Survey Plan and the report accompanying the Survey Plan clearly reveals that it was prepared with the held of Naksha Bandobast of 1370 Fasli in which the location of the entire Plot No.62 is shown. It is, therefore, clear that in the Survey Plan entire Plot No.62 was shown and that part which is the disputed land measuring 0.18 decimals was also shown. In this view of the matter, the finding recorded by the Lower Appellate Court does not suffer from any infirmity. The Lower Appellate Court has arrived at a conclusion on the basis of the documentary and oral evidence. The decision in the case of Shreepat (supra) relied upon by the learned counsel for the appellant has no application to the facts of the present case as from the documents on record it is clear that the land in dispute can be identified and had been identified. The second substantial question of law does not arise for consideration as it is based on assumption that the plot could not be identified.
There is, therefore, no merit in the Second Appeal. It is, accordingly, dismissed.
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