Baij Nath prasad vs Sahdei Devi and Others

R.K. Mahajan, J.—This is a Second Appeal filed against the judgment and decree dated 17121974 passed by Shri S.D.N. Sahi, II Additional District and Sessions Judge, Deoria by virtue of which he dismissed the appeal and affirmed the decree of the lower Court. The lower Court has passed a decree to the effect of prohibitory injunction against interference in the plaintiff''s possession over a piece of land and also possession in the alternative on the basis of a title i.e. by way of purchase of land. .06 acre from Abdul Shakoor and Subrati on 15121967. The trial Court believed the description given in the sale land and decreed the suit. In order to understand the controversy brief resume of facts is given below.

It appears that there was a litigation and suit was instituted in the year 1957. The suit was numbered as 1808 of 1957 regarding declaration of the title between the previous owners and which was compromised. Under compromise 0.23 acre of land towards the north of the said plot was given to Abdul Majeed, Abdul Shakoor and Sobrati while 0.57 acre land towards south of the plot was given to Ali Sher and others.

It appears later on that Abdul Shakoor and Subrati made an application before the competent authority for bhumidhari rights in respect of 2/3rd shares of their land which fell into their share i.e. .23 acre. Abdul Shakoor and Sobrati sold away .06 acre of land out of .23 acre of land of their share in favour of the plaintiff which is subject matter of dispute.

It is alleged by the plaintiff that since this sale he is in possession and defendantappellant in the year 1968 tried to encroach upon the said piece of land. Consequently suit for prohibitory injunction or in the alternative for possession was filed. The case of the defendant is that the plaintiff has no title over the piece of land, even the title to Abdul Shakoor and Sobrati was denied. It was further pleaded that the land is not identified on the spot and subdivision which has been described by the plaintiff in the plaint does not exist. They went to the extent that they have purchased a piece of land from the aforesaid plot from Shri Ali Sher. The lower Court gave a finding that the plaintiff is owner of .06 acre of land of plot No. 1487/1 towards north of the said plot. After perusing the record of Original Suit No. 1808 of 1957 from the Record Room it also came to the conclusion that .23 acre of land towards the north of the plot belonged to Abdul Shakoor, Sobrati and Abdul Majeed and from this .06 acre has been sold to the plaintiff. The lower Court was also of the view that the land has been properly described by Khasra Number as well as by boundary and the identity of the land is clear on the spot by boundaries. This finding is based on evidence as well as report of the local Commissioner. Admittedly the plaintiff and defendants are co sharers. Now the dispute is regarding the location of lands.

The contention of Shri R.S. Misra, learned Counsel for the appellant is that the lower courts has failed in its duty to locate the land in dispute i.e. identity of the land which had been given to Abdul Shakoor, Sobrati and Abdul Majeed on the one hand and Ali Sher on the other hand on the compromise decree passed in Suit No, 1808 of 1957. The lower Court also committed error relating to the identity of the land of saledeed dated 15 121961 executed by Abdul Shakoor and Sobrati in favour of the plaintiffsrespondents. None of the Courts tried to determine the location of .23acre of plot No. 1487/1 which went to Abdul Shakoor, Sobarati and Abdul Majeed and .57 acre which was left with Ali Sher and others under the decree. It has been also submitted that the lower Court should have also given a finding whether Ali Sher had been in possession of .04 acre of land of plot No. 1487 sold by him to the defendantappellant. It has been further submitted that the case be remanded for the location of plots of differentcosharers in the ends of justice. The case be remanded to lower Court for measuring and demarcating .23 acres of land of plot No. 1487/1 given to Abdul Shakoor, Sobrati and Abdul Majeed and .57 acre area given to Ali Sher and others under the decree dated 1381958 and then only justice can be done.

Learned Counsel for the appellant has also brought to my notice copies of compromise dated 1481958 and survey map of 24 101968. I have allowed this application after hearing the arguments as they are public documents. I do not find any force in the submission of the learned Counsel for the appellant on the following reasoning''s.

Even though the appeal relates before the amendment of Civil Procedure Code in 1976 as at that time question of law were not framed. The Appellate Court was reluctant to interfere in the findings of fact which were based on reasonable appreciation of evidence and there is no misreading of evidence.

8.1 have perused the lower court judgment as well as judgment of Appellate Court and I find that Shri Kaushal Kishore, Commissioner confirmed the survey map, paper No. 57C2, also delineates within those boundaries at the spot. The first Commissioner Shri Vishwanath Misra also visited the spot just after fourteen days i.e. on 1821968 and prepared site plan, paper No. 18C2 and he also found boundaries tallying the land in suit. There is no mention in the judgment that appellant or the defendant in the suit ever raised objection against those locations of the disputed land by two Commissioners. The lower Appellate Court has also held in para No. 8 of the judgment that according to compromise northern plot from the mother plot to the extent .23 acre was given to three brothers Abdul Majeed, Abdul Shakoor and Sobrati and others including Ali Sher were specially given only southern portion of .57 acre of land. In view of this matter Ali Sher could not transfer the land in dispute to the appellant on north western portion plot No. 1487/1 as he had no legal interest in it.

The lower Appellate Court was also of the view that from the date of compromise the northern portion i.e. .23 acre area of plot No. 1487/1 vested vide paper No. 84Cl in the plaintiffs vendors and their brother Abdul Majeed to the complete exclusion of the appellant''s vendor Ali Sher and other cotenants. So an irresistible inference is that the appellant never remained in possession after compromise.

The lower Court has come to right conclusion that Ali Sher could not have put the appellant in possession of the suit land and as such he had no right to interfere after the saledeed at paper No. 35A.

These are the findings of the facts based on all relevant features of evidence and they hardly requires any interference.

Regarding the prayer that again demarcation be done is not tenable in the facts and circumstances of the case as it would reopen the litigation which has been concluded after a long time. There is no justification for demarcation. The submission of the learned Counsel for the appellant that how the plots are to be located and the land in suit is a nonexistent plot is also of no avail. It some times happens that cosharers remain in possession by virtue of boundaries of land from a big chunk of land and it does not mean that location is not possible. The parties have demarcated their plots in compromise and if any parties have still doubt regarding their/his share he/they can seek the legal remedy by way of partition and not by way of interference in exclusive possession of the respondentplaintiff of his plot. Admittedly they are cosharers and they are entitled to enjoy their possession.

In view of the above discussion, I am of the considered view that the appeal has no force at all and it is dismissed.