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RATAN LAL versus LAMPE AND ANOTHER

High Court of Judicature at Allahabad

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Ratan Lal v. Lampe And Another - SECOND APPEAL No. 1599 of 1975 [2007] RD-AH 1715 (2 February 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 30

SECOND APPEAL  NO. 1599 OF 1975

Ratan Lal - Defendant-appellant

versus

Lampe (since deceased)

represented by  Smt. Thakura Devi

and others - Plaintiffs-respondent

Hon'ble Sunil Ambwani, J.

Heard Shri K.N. Saxena, learned counsel for appellant and Shri Y.S. Saxena, learned counsel for respondents.

This defendant's second appeal arises out of OS No. 557 of 1971,  for mandatory injunction for closing the door  opening towards the disputed land and for permanent injunction restraining the respondents from interfering in the plaintiff's possession.

The plaintiff purchased the land (occupancy tenancy) from Har Prasad by sale deed dated 24.1.1956,  giving boundaries and measurements. Har Prasad sold his remaining land, which was Bhumidhari (transferable tenure) to defendants by a registered sale deed. Both the parties claim the disputed land, which is in the shape of a 'Bera' (36 Qubits x 36 Qubits). The trial court dismissed the Suit No. 557 of 1971 with the finding that the defendant had a registered sale deed in his favour on 2.2.1972. There was contradictory evidence with regard to the possession of the parties. The suit was as such dismissed  on the ground that the plaintiff could not prove either ownership or possession. The appellate court allowed the Civil Appeal No. 297 of 1973 and decreed the suit on 25.8.1975.

The appellate court's findings may be quoted as follows:-

"The respondent alleged the land of the Bera a part of Bhumidhari land. He did not disclose the plot number of the land. No survey was got down by him to prove that the land of the Bera was a part of his Bhumidhari plot. The respondent produced a sale deed ExA3 and stated that he purchased the land of the Bera from Har Prasad by the above sale-deed. This sale-deed Ex. A3 does not contain that the respondent purchased the Bera in dispute. By this sale deed the respondent purchased certain agricultural plots from Har Prasad. As mentioned above, the respondent has not proved by any survey or otherwise that this Bera is existed in the land purchased by him by this sale deed. Thus the sale deed Ex. A3 is of no help to the respondent in the matter and it cannot be held that the Bera or the land of the Bera has been purchased by the respondent by

this sale deed. Har Prasad who was admittedly the owner of the land of Bera or  Bera has deposed that he sold the Bera to the appellants in 1956. This witnesses in confusion or otherwise though has made certain statements which may indicate that he has sold the land of this Bera to the respondent also by the sale deed Ex. A3 but if his statement is read as a whole it would be clear that he did not mean that he sold the Bera or the land of it to the respondent also. Moreover when he had already sold the Bera to the appellants he could not legally and validly sell it to the respondent. In absence of survey the extract of Khatauni  and Khasra Ex A1 and A2 are also of no help to the respondent in the matter............

The claim of the respondent that he was using the land of the Bera as his passage for his house with the permission and within the knowledge of Har Prasd even before the purchase of the land by Ex. A3 is not acceptable on the very face of it. The frontage of the respondent's house is not towards the Bera but it is in other site. There was, therefore, no question for using the land of the Bera as passage. There is no cogent evidence on the record in support of the fact that the respondent was using the land of the Bera as his passage even before the sale deed Ex.A3. P.W.3 who is the previous owner of the Bera or the land thereof has not supported respondent in the matter.................It means that the land of the Bera was not cultivated at the time it was sold to the appellants. Even assuming for the sake of arguments that the land was an agricultural land and a Sirdari land of Har Prasad and, therefore, could not be legally sold by him to the appellants. I find that the appellants have been in possession as owner of the Bera since after 24.1.1956, and, therefore, they have became owner of it. They perfected their title even by adverse possession on the date of the suit. The respondent  had no right to interfere in the possession and use of the Bera.

On the above I thus find that the appellants are owners and have been in possession and use of the Bera in dispute. They proved their above claim by their evidence on the record. The finding of the lower court otherwise to it are not acceptable."

Shri K.N. Saxena, learned counsel for appellant submits that Har Prasad could not have sold away his Bhumidhari  land until he obtained Bhumidhari sanad. The sale deed dated 24.1.1956 is not a registered document. Har Prasad had specifically stated that he had sold his entire Bhumidhari land to the defendant-appellant.

The appellate court clearly recorded the findings that the sale deed Ex A3 dated 3.2.1961 does not mention anything about the Bera. This sale deed does not give the area, boundary or measurements of the land sold to the defendant. It only refers to the plot numbers with no other description. Har Prasad clearly stated in his statement that he had sold the land described as  Bera to the plaintiff-respondent in 1956. This sale deed for Rs. 90/- only giving the bounday and measurements accurately, was not required to be registered at that time, and was proved on record. It described the land of 'Bera' (used for agricultural purposes) in detail.

These findings in my opinion are clear findings, which do not call for any interference in the second appeal. The appellate court has considered both the documentary evidence; oral evidence as well as  reports of the Commissioner and found that plaintiff-respondent was owner and  in possession of the Bera.

The second appeal does not raise any substantial question of law and is accordingly dismissed with costs.

Dt.2.2.2007

RKP/-


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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