Kaila Nath vs Malkiat Singh

N.K. Kapoor, J.—This is plaintiff''s regular second appeal against the judgment and decree of the Additional District Judge dated 5.4.1991 whereby the appeal filed by him against the judgment and decree of the trial Court was dismissed.

The case of the plaintiff as pleaded in the plaint is that the Gram Panchayat was owner of the land which was allotted in the form of plots to various persons by the Gram Panchayat in the year 1960-61. In fact, the Gram Panchayat carved out 14 plots of 10 Maria each and were allotted to Jogi Nath including the appellant-plaintiff. After the allotment of said plots, the plaintiff was given Rs. 750/- by the District Welfare Department. The plaintiff was allotted the plot and house No. 13. He took possession of the same after its construction and remained in possession of the same till the defendant dispossessed the family of the appellant when he was out of town. Hence the present suit for possession.

Defendants put in appearance, filed written statement and contested the claim set up by the plaintiff. The defendants denied the factum of allotment in favour of the plaintiff or raising of construction thereupon by him. It was specifically denied that the plaintiff was an allottee of the site in dispute. In fact, according to the defendants their father constructed a room upon the site in dispute. Other rooms were constructed by defendant No. 1.

On the pleadings of the parties, following issues were framed:-

1/ Whether the plot and house in dispute is No. 13 allotted by the Gram Panchayat ? OPP

2/ Whether the plaintiff constructed a house in dispute on the spot allotted to him ? OPP

3/ Whether the site plan filed by the plaintiff is incorrect ? OPD.

4/ Whether the suit is not maintainable as alleged in para No. 2 of the preliminary objection of written statement ? OPD

5/ Whether the suit is under-valued for the purposes of court fee and jurisdiction ? OPD

6/ Whether the defendant has acquired ownership right by way of adverse possession ? OPD.

7/ Relief.

The trial Court decided issues No. 1 and 2 against the plaintiff. Issue No. 3 was not pressed. Issue No. 4 was decided in favour of the defendants. Issue No. 5 was decided in favour of the plaintiff. Issue No. 6 was decided against the defendants. In view of the decision in respect of issues No. 1 and 2, the suit of the plaintiff was dismissed.

The lower appellant Court reappraised the evidence led by the parties. On carefully examining the material evidence, the Court noticed that the allotment letter issued by the Gram Panchayat - basis of title of the plaintiff - has not seen the light of the day. Similarly, there is no proof on record that the plaintiff had been paying Chuhla tax to the Gram Panchayat in respect of the house in dispute. As per case of the plaintiff, he lodged a report with the police regarding his dispossession, yet this document has also not been placed on record. In addition thereto, the lower appellate Court came to the conclusion that it is not proved on record that the plaintiff raised any construction upon the site in dispute. Not only this, no member of the Gram Panchayat has been examined to prove the allotment of plot in favour of plaintiff nor any record of the Panchayat has been produced for this purpose. After noticing these glaring infirmities, the Court found no merit in the appeal and consequently dismissed the same.

Before me, almost identical pleas have been raised by the learned counsel for the appellant which somehow did not find favour with the Courts below.

Once again, it has been urged by the learned counsel for the appellant that as many as 14 plots were carved out each measuring 10 Marias by the Gram Panchayat of the village to be allotted to the persons like the plaintiff. Pursuance to the resolution of the Gram Panchayat, allotment was made and subsequently each of the allottee raised construction there upon. A sum of Rs. 750/- was given to the plaintiff as a grant for raising construction as has been proved on record vide Exhibit DW3/4. It, prima facie, prove the possessory title of the plaintiff who in law is entitled to claim possession against any one except the true owner. The Courts below have clearly misread the evidence led by the parties which has consequently resulted in dismissal of the suit of the plaintiff. Had the pleadings of the parties been kept in view, especially the claim of the defendant that he has become owner by adverse possession, result would have been otherwise. The very fact that defendant has set up adverse title to that of the plaintiff ipso facto establishes that the plaintiff is owner as such a plea can be taken by owner only.

Having heard learned counsel for the appellant and on perusal of the oral as well as documentary evidence adduced by the parties, I find no substance in any of the submission made by the learned counsel for the appellant.

Plaintiff has claimed possession on the basis of title - making specific averment in the plaint that a plot was allotted by the Gram Panchayat whereupon he has raised construction. To prove this fact, there is no documentary evidence on record. The plaintiff has failed to place on record the copy of the alleged resolution passed by the Gram Panchayat vide which one out of 14 plots was allotted to the plaintiff sometime in the year 1961. Concededly, the Gram Panchayat like any other statutory authority acts as per resolution passed by it which somehow has not seen the light of the day. In the absence of any resolution, the factum of allotment has not been proved. Not only this, none of the members of the Gram Panchayat have come forward to support the contention of the plaintiff. The case when examined on the basis of earlier possession also is not proved as per evidence on record. According to thee plaintiff, defendants took forcible possession of the house and the site in dispute some three years back. The suit was filed on July 27, 1987. How and in what manner the plaintiff and his family members were dispossessed is again a matter of imagination only. The report alleged to have been lodged with the police station has also not been adduced in evidence. Admittedly, the plaintiff during all these years had not paid any Chuhla Tax a sort of house tax imposed by the Gram Panchayat. In the fact of these material infirmities, the Courts below rightly dismissed the suit of the plaintiff. Thus, finding no merit in the appeal, the same is dismissed no order as to costs.