AI Structured Summary
Not yet generated for this judgment
Judgment
P.K. Mishra, J.—By this common judgment, Second Appeals No.557/2005 and 215/2006, which are arising out of one common suit filed by the plaintiff Madan Lal Gupta, are decided.
Second Appeal No.557 of 2005
The instant second appeal has been preferred by the defendant Komalchand Jain against whom both the Courts below have decreed the plaintiff''s suit for declaration, mandatory injunction and possession.
The respondent/plaintiff Madan Lal Gupta preferred the suit on the pleadings that the original owner of the land, namely, Lal Amol Singh sold a part of the property in favour of the defendant on 27-4-1974 and the other part of the property for which the suit is preferred was purchased by the plaintiff from the widows, sons and daughters of Amol Singh (whose names are mentioned in paragraph 4 of the plaint) by registered sale-deed dated 25-6-1975 and the plaintiff was settled in possession. The defendant encroached certain portions of the land belonging to the plaintiff and in spite of serving a legal notice the defendant continued to raise construction. Some other portion of the suit land was sold to the plaintiff by the legal heirs of Amol Singh by registered sale-deed dated 3-4-1976.
It was further pleaded that when the plaintiff started raising construction over his part of the land, the defendant created obstruction and interference on which the plaintiff lodged a report with the police in April, 1976. The defendant moved an application u/s 145 of the Cr.P.C. and an ex parte order of attachment was issued in his favour on 27-5-1976 in Criminal Case No.91/1976 in the Court of Sub-Divisional Magistrate, Bilaspur. The property, thus, remained in custodia legis. It was also stated in the plaint that by his order dated 26-9-1978, the Magistrate directed the parties to approach the Civil Court and till an order is passed by the Civil Court, the property shall remain under attachment. According to the plaintiff, the defendant made interpolation in his sale-deed dated 27-4-1974 for which F.I.R. on Crime No.107/1976 under Sections 420 and 465 of the Indian Penal Code was registered against the defendant (It was informed during argument that the criminal case eventually came to an end after death of original defendant /accused Hukumchand Jain). The plaintiff prayed for the following reliefs in the plaint:
(a) It be declared that the plaintiff is the owner of 40 feet x 80 feet land in the area, in the plaint map and that because of the interpolation made by the defendant in his sale-deed dated 27-4-1974 with respect to the length and width of the area purchased by him, the plaintiffs right over the area ?, ?, ?, ?, ?, ? is not affected and in the alternative the plaintiff be delivered possession from the defendant.
(b) It be declared that the plaintiff is entitled to recover possession of the land under attachment in the Court of Sub-Divisional Magistrate in Criminal Case No.91/1976 on the area ?, ?, ?, ?, ?, ?, ?, ?, ?.
(c) Construction raised by the defendant on the area ?, ?, ?, ?, ?, ?, ? in the plaint map be demolished and the defendant be directed to deliver possession of the said area to the plaintiff.
By amendment made in the plaint vide trial Court''s order dated 26-11-1999, relief of possession by way of issuance of mandatory injunction was added in prayer clause ?. By another order dated 4-5-2000 by the trial Court, plaintiffs prayer for amendment to add relief of possession at the end of relief clause ? was incorporated.
The defendant, in his written statement, denied the plaint allegations and stated that he has not encroached any land belonging to the plaintiff. It was stated by the defendant that he had purchased 140 feet x 180 feet land by sale-deed dated 27-4-1974, whereafter nothing remained with the owner to alienate in future and, thus, subsequent sale of land from the same khasra made by the legal heirs of Amol Singh in favour of the plaintiff on 25-6-1975 is illegal and the plaintiff does not acquire any right, title or interest on the suit land. It was-further stated that Amol Singh and his heirs were tribal and could not have sold the property to a non-tribal. Admitting initiation of proceedings u/s 145 of the Cr.P.C., the defendant stated that the said proceedings came to an end on 21-12-1983 (Ex.D-14) when it was declared that the defendant was in possession of the suit property within two months prior to the date of passing of the preliminary order by the Magistrate (27-5-1976). The defendant was delivered possession of the land on 12-1-1984 (Ex.D-7).
By amending the written statement, the defendant stated that on the date of filing of the suit a mere suit for declaration was maintainable, however, when ultimately possession was delivered to the defendant, suit for mere declaration was not maintainable and that relief for recovery of possession from the defendant having been prayed/claimed by way of amendment in the plaint after 12 years from 12-1-1984, when possession was delivered to the defendant by the Magistrate u/s 145 of the Cr.P.C., the suit is not maintainable being barred by limitation.
The trial Court partly decreed the suit on the findings that --
(a) The measurement of the suit land described in the plaint map is correct,
(b) Late Amol Singh had sold an area of 40 feet on the north-sought direction upto the house of Badri Prasad in the east-west direction and not an area of 40 feet x 80 feet to the original defendant Hukumchand Jain
(c) The plaintiff purchased the area demarcated as ?, ?, ?, ?, ?, ? in the plaint map by registered saledeed dated 25-6-1975,
(d) The defendant has encroached over the area marked in blue colour in the plaint map,
(e) The plaintiff has legally purchased the area marked as ?, ?, ?, ?, ?, ? and ?, ?, ?, ? by registered sale-deed dated 3-4-1976, however, purchase of the area marked as ?, ?, ?, ? in favour of the plaintiff is illegal,
(f) It is not proved that the sale-deeds dated 25-6-1975 and 3-4-1976 in favour of the plaintiff are illegal and void in view of the provisions of Section 165(6) of the Chhattisgarh Land Revenue Code, 1959,
(g) The suit filed by the plaintiff, which was initially for mere declaration, is maintainable,
(h) Plaintiffs suit is not barred by limitation,
(i) The defendant is not entitled to seek costs from the plaintiff,
(j) The plaintiff is entitled to seek declaration and possession for the land covered within the area ?, ?, ?, ? in the plaint map.
The trial Court, while deciding issues No.7 and 8, concluded that since on the date when the suit was preferred, neither the plaintiff nor the defendant was in possession as the lands were attached in proceedings u/s 145 of the Cr.P.C. and the defendant being not in a position to deliver possession of the land to the plaintiff, it was not necessary for the plaintiff to seek recovery of possession from the defendant and since when the possession was handed over to the defendant on completion of Section 145 Cr.P.C. proceedings, the plaintiff amended the plaint to seek relief of recovery of possession, the suit is maintainable. Defendant''s plea regarding limitation was negatived by the trial Court on the reasoning that for some part of the suit land, relief for recovery of possession was made in the plaint from the very beginning and for the remaining part which is in custodia legis, relief for recovery of possession could not have been made, however, when possession was delivered to the defendant, plaint was amended and that since for a substantial period the proceedings in the suit was kept in abeyance (because of the pendency of the criminal proceedings against original defendant Hukumchand Jain), the said period shall be excluded as has been specifically observed by the trial Court in its order dated 5-5-2000, it cannot be said that the suit is barred by limitation. It was also observed by the trial Court that even otherwise the Court has power to give option to the plaintiff to seek recovery of possession if during pendency of the suit the plaintiff has been dispossessed from the suit property, the suit is found to be within time. In paragraph 58 of the trial Court''s judgment, it is observed that the proceedings in the suit was kept in abeyance from 25-6-1984 to 24-6-1999.
The first appellate Court partly allowed the appeal preferred by the defendant and by modifying the decree, it has been ordered that the defendant shall hand over vacant possession of the land demarcated with the boundaries ?, ?, ?, ?, ?, ?, ?, ? to the plaintiff and that the defendant has not encroached on the area ?, ?, ?, ? and ?, ?, ?, ?.
The first appellate Court, while dealing with the defendant''s plea regarding limitation, has observed that on perusal of the plaint, as it was originally filed, it would appear that the suit was for declaration and possession. The plaintiff sought recovery of possession of the encroached area from the beginning and for the entire area recovery of possession was sought by way of amendment and that since the proceedings in the suit was kept in abeyance from 25-6-1984 to 24-6-1999 and the requirement of seeking recovery of possession has occasioned during pendency of the suit which was also made by amending the plaint, the suit is not barred by limitation.
This Court has framed the following substantial question of law for determination:
Whether by erroneous application of law, the suit for possession over the land, attached in proceeding u/s 145 of the Cr.P.C. and thereafter given to appellant on 12-1-1984, was held within limitation?
To answer the substantial question of law formulated by this Court, the suit, as it was originally filed and the intervening events are required to be considered.
The suit, as it was originally filed on 30-4-1979, is for one bigger and composite area described as ?, ?, ?, ?, ?, ? and two smaller areas within the composite main suit area, the first area being ?, ?, ?, ?, ?, ?, ?, ?, ?, which was under attachment in Section 145 Cr.P.C. proceedings by the Executive Magistrate in Criminal Case No.91/1976. A part of the second area is marked in blue colour in the plaint map, which, according to the plaint paragraph 5, was encroached by the defendant in September, 1975. The third area in the suit is described as ?, ?, ?, ? marked in red colour in the plaint map and as per paragraph 8 of the plaint, this area (red coloured area) together with the blue coloured area was encroached by the defendant in between September, 1975 to April, 1976, on which the defendant was served with a legal notice in April, 1976. The bigger composite area would henceforth be referred as the first main suit area, whereas the area marked in blue colour in the plaint map shall be referred as area I-A and the area marked in red colour in the plaint map shall be referred as area I-B.
In the relief clause in the plaint, relief for declaration was prayed with respect to the first main suit area, whereas in paragraph 24 ? relief of entitlement of delivery of possession from the Magistrate was sought with respect to the area I-A which excludes the area marked in blue colour (the area I-A) and red colour (the area I-B). In paragraph 24 of the plaint, relief for possession was sought for the area marked in blue colour, i.e. I-A and the area marked in red colour, i.e., I-B. Thus, relief for possession with regard to blue coloured area I-A and red coloured area I-B was from the very beginning in the plaint. Relief for entitlement of possession with regard to the area which was under attachment in Section 145 Cr.P.C. proceedings were also made in the plaint from the beginning, however, this relief for entitlement of possession of the attached area was sought from the Executive Magistrate, who was in seisin of Criminal Case No.91/1976 u/s 145 Cr.P.C. probably because on the date of filing of the suit, the land being attached, neither the plaintiff nor the defendant was in possession and the Court was in possession of the land, as it was under attachment. This area, which was under attachment, excludes the area I-A in blue colour and the area I-B in red colour in the plaint map.
As earlier noticed, the plaintiff had initiated the criminal proceedings against the defendant for offences under Sections 420 and 465 of the Indian Penal Code on Crime No.107/1976. From the order-sheet of the trial Court recorded on 25-7-1981, it would appear that the defendant''s application for keeping the proceedings in the suit in abeyance was allowed by the trial Court and the proceedings of the suit was kept in abeyance, which was revived on 15-10-1982 on the ground that the criminal case initiated against the defendant has been dismissed and the defendant has been acquitted. Thereafter, when the plaintiff preferred a revision against the order passed in favour of the defendant acquitting him in the criminal case (Criminal Case No.373/1980) the defendant again moved an application on 12-4-1983, which was taken up for consideration on 15-12-1983 and the same was dismissed in absence of the defendant. The defendant again appeared before the trial Court for setting aside the ex parte order and thereafter moved an application under Order 47 Rule I of the Code of Civil Procedure, 1908 for review of the order dated 15-12-1983, whereby his application for keeping the proceedings in suit in abeyance because of pendency of the criminal proceedings, was dismissed. This review/recalling application was taken up for consideration on 25-6-1984 and while allowing the said review, the trial Court directed that the proceedings of the suit shall be kept in. abeyance and shall remain stayed during pendency of the criminal revision preferred by the plaintiff against the defendant challenging his acquittal in the criminal case. In the meanwhile, plaintiffs application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 was considered and the defendant was allowed to raise construction by furnishing security. The plaintiff appears to have preferred an appeal under Order 43 of the Code of Civil Procedure, 1908 in Miscellaneous Civil Appeal No.02/88 in which records of the trial Court were summoned. Miscellaneous Civil Appeal No.02/88 was ultimately decided on 24-8-1994 and the appellate Court sent back the record to the trial Court which is recorded in the trial Court''s order-sheet dated 28-11-1994. In the order-sheet dated 16-3-1996, the earlier order of the trial Court passed on 25-6-1984 was referred and the proceedings were again kept pending, however, in the order-sheet dated 12-7-1996, it came to be recorded that the proceedings are stayed under the orders passed by the High Court. In the meanwhile, the, defendant died, however, the suit remained pending awaiting the High Court''s order. On 24-6-1999, it came to be noted by the trial Court that there is no stay from the High Court, therefore, the proceedings be continued. On 25-6-1999, plaintiff''s application for impleadment of the legal representatives of the deceased defendant was allowed and the suit proceeded further. The defendant filed his written statement on 15-11-1999. On 18-11-1999, the plaintiff moved an application for amending the plaint, which was allowed on 26-11-1999. By this amendment, the plaintiff amended paragraph 24 ? to plead that "in the alternative the plaintiff be delivered possession of the suit land by issuance of a mandatory injunction against the defendant". This amendment was made with respect to the area under attachment under the orders of the Magistrate. The plaintiff made another application to amend the plaint, which was allowed by the trial Court on 5-5-2000. In this order, the plaintiff was permitted to amend paragraph 24 ? to plead that "in the alternative the defendant be directed to deliver possession of the suit property (main composite suit area) to the plaintiff.
With the above pleadings and the events which took place during pendency of the suit, the suit proceeded along with the objection regarding the suit being barred by limitation as the amendment with regard to the possession of the suit land having been made 12 years after the possession of the land was delivered to the defendant on 12-1-1984.
Learned counsel for the appellant has vehemently argued that the Courts below have failed to appreciate the correct legal principles while holding that the suit is within limitation, whereas it is apparently barred by limitation having been amended after 12 years from 12-1-1984. Relying on Vishwambhar and Others Vs. Laxminarayana (Dead) through L.Rs. and Another, learned counsel for the appellant would submit that in a case where the amendment made in the plaint was barred by limitation on the date when the amendment was sought to be introduced the doctrine of relation back would not apply to the benefit of the plaintiff even if the amendment has been allowed. According to learned counsel for the appellant, the plaint was amended on 26-11-1999 with respect to the attached area and on 5-5-2000 with respect to the main composite suit area, thus, both the amendments are made after more than 12 years from 12-1-1984 and the suit for possession was, thus, barred.
Vehemently opposing the arguments advanced by learned counsel for the appellant learned counsel for the respondent has urged that the suit cannot be thrown out on the ground of limitation because on the date of filing of the suit the area was under attachment under the orders of the Executive Magistrate and was in custodia legis. The delivery of possession having taken place during pendency of the suit, being a subsequent event, and the plaintiff having amended the suit, it will be treated as if the prayer for amendment was made on the date of filing of the suit. In the alternative, he would also submit that the suit having been stayed in the year 1981-82 and thereafter from 25-6-1984 to 24-6-1999, the said period would be excluded and, thus, after exclusion of this period, the suit is within time.
In Vishwambhar and others vs. Laxminarayan (Dead) through LRs. and another (supra), relied by learned counsel for the appellant, the Hon''ble Supreme Court, while dealing with a suit seeking declaration that the alienations made by the defendants were without legal necessity and is hit by Section 8(2) and (3) of the Hindu Minority and Guardianship Act, 1956, it was held that the subject alienations made by the defendant were voidable at the instance of the plaintiffs and the plaintiffs were required to get the alienations set aside if they wanted to avoid transfers and regain the property from the purchasers and that it was also necessary for the plaintiffs to seek a prayer for setting aside the sale-deeds, however, in the plaint, as it was initially filed, no such prayer for selling aside the sale-deeds was made, which came to be introduced by amendment during hearing of the suit and further that such prayer for amendment in the prayer clause of the suit having been made after 3 years from the date the minor attained majority, the prescribe period of limitation, having elapsed, the amendment of the plaint could not come to the rescue of the plaintiff. In paragraph 10 of the report, the Hon''ble Supreme Court further observed that all the necessary averments for setting aside the sale- deeds were not contained in the plaint as it was originally filed and the addition of prayer for setting aside sale-deeds was not a mere formality. It was further observed that in such circumstances, the suit for setting aside the transfers could be taken to have been filed on the date amendment of the plaint was allowed and not earlier than that.
When the law (aid down by the Hon''ble Supreme Court in Vishwambhar and others vs. Laxminarayan (Dead) through LRs. and another (supra) is considered for application in the facts in hand, it would appear that the facts of this case are different. This Court is faced with a suit in which a major part of the suit land (almost 95% of the total suit land as would appear from the plaint map) was under attachment under the orders of the Executive Magistrate. Prayer for recovery of possession was already made with respect to the areas I-A and I-B and even with respect to the attached area a prayer for declaration of entitlement for recovery of possession was made though this relief was claimed from the Magistrate in whom it was under attachment. Thus, relief for entitlement of possession was earlier made in the plaint in different form and in the circumstances in which the suit was filed on 30-4-1979.
To decide as to what is the nature of possession of the land under attachment and in whose possession it can be said to be while it is under attachment, this Court would refer to the judgments rendered by the Hon''ble Supreme Court in this regard, however, before that, this Court would refer to the Supreme Court judgment in Vineet Kumar Vs. Mangal Sain Wadhera, wherein it has been held that if a prayer for amendment merely adds to facts already on record, the amendment would be allowed even after statutory period of limitation. The above referred judgment in Vineet Kumar vs. Mangal Saai Wadhera (supra) has been referred with approval by the Hon''ble Supreme Court in a recent judgment in South Konkan Distilleries and another vs. Prabhakar Gajanan Naik and others, (2008) 14 SCC 632. In this decision, the settled principle has been reiterated that in the matter of allowing amendment of pleadings, the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action, particularly when a suit on the new cause of action is barred. Referring to A.K. Gupta and Sons Vs. Damodar Valley Corporation, , it was further observed by the Hon''ble Supreme Court that an exception to the general rule is that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation.
The nature of order passed by a Magistrate u/s 145 of the Cr.P.C. has been enunciated by the Hon''ble Supreme Court in Bhinka and others vs. Charan Singh, AIR 1959 SC 960. In this case, referring to the Privy Council decision in Dinomoni Chowdhrani vs. Brojo Mohini Chowdhrani, (1901) 29 Indian Appeals 24, the Hon''ble Supreme Court has held in paragraph 16 of the report thus:
This leads us to the consideration of the legal effect of the order made by the Magistrate under S. 145 of the Code of Criminal Procedure. Under S. 145(6) of the Code, a Magistrate is authorized to issue an order declaring a party to be entitled to possession of a land until evicted therefrom in due course of law. The Magistrate does not purport to decide a party''s title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini Chowdhrani, (1901) 29 Ind App 24,33, tersely states the effect of orders under Sec. 145 of the Code of Criminal Procedure thus: "These orders are merely police orders made to prevent breaches of the peace. They decide no question of title...........
We, therefore, hold that a provisional order of a Magistrate in regard to possession irrespective of the rights of the parties cannot enable a person to resist the suit under S. 180 of the Act.
In Deokuer and Another Vs. Sheoprasad Singh and Others, the Hon''ble Supreme Court has held that "that-- in a suit for declaration of title to property filed when it stands attached u/s 145 Cr.P.C., it is unnecessary to ask for the further relief of delivery of possession. Assuming that in the case of such an attachment, the Magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession the fact is irrelevant, It is unnecessary to ask for possession when property is in custodia legis, property under attachment u/s 145 of the Cr.P.C. is in custodia legis, the fact that the decree may not be binding on the Magistrate does not affect the competence of the Court".
In Ittavira Mathai Vs. Varkey Varkey and Another, it has been held by the Hon''ble Supreme Court that when property is attached u/s 145 of the Cr.P.C. and the Magistrate placed it in the possession of the receiver, the possession of the receiver would necessarily inure for the benefit of the successful party, meaning thereby, that the possession of the Magistrate, during the period when the property was under attachment, was for the benefit of the successful party.
In Sant Lal Jain Vs. Avtar Singh, the Hon''ble Supreme Court has held in paragraph 7 of the report thus:
In the present case it has not been shown to us that the appellant had come to the court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind attempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the, appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.
When the principles laid down by the Hon''ble Supreme Court are tested in the facts of the present case to adjudicate and answer the substantial question of law, it would clearly appear that in the present suit prayer for entitlement of recovery of possession was already made in the plaint with respect to the attached property though it was stated in the said relief clause No. 24 ? that the plaintiff being the owner of the property is entitled to recover possession from the Court. Similarly, with respect to the encroached area, i.e., the area I-A marked in blue colour and the area I-B marked in red colour, prayer for delivery of possession was made in the original plaint. The foundational fact with regard to the recovery of possession has been made through out in the plaint. The amendment made in the plaint for seeking alternative relief of recovery of possession, by way of abundant precaution, was made on 26-11-1999 and 5-5-2000, however, since prayer for declaration of entitlement for delivery of possession with necessary foundational fact was already available with respect to the attached property for which learned counsel for the appellant submits that the possession was delivered to him on 12-1-1984, it cannot be said that relief for entitlement of possession was never sought for and in any case such amendment seeking relief of delivery of possession by way of alternative relief was not barred by limitation as foundational fact for seeking such amendment was already available in the plaint, as held by the Hon''ble Supreme Court in South Konkan Distilleries and another vs. Prabhakar Gajanan Naik and others (supra). The judgment relied by learned counsel for the appellant in Vishwambhar and others vs. Laxminarayan (Dead) through LBs. and another (supra) is distinguishable on facts inasmuch as in the facts of the present case since foundational facts for seeking the alternative relief of possession was already available and the amendment was only a formality, the doctrine of relation back would apply and the amendment will be treated to have been prayed on the date of filing of the suit as the property being attached and remaining in custodia legis, it was not necessary for him to seek relief of possession.
Even otherwise, when, in Ittyavira Mathali vs. Varkey and another (supra), the Hon''ble Supreme Court has held that the possession of the receiver during the period of attachment, would necessarily inure for the benefit of the successful party, and in the present case, the plaintiff has prayed for his entitlement to obtain possession from the Magistrate in the plaint from the very beginning and the Magistrate ultimately hands over the possession to the defendant, applying the above principle, the possession of the Magistrate, having inured for the benefit of the defendant it will be treated that the plaintiff''s prayer for being entitled to obtain possession from the Magistrate made in the plaint from the inception would be deemed as if the plaintiff has prayed, for entitlement to obtain possession from the defendant.
In view of the above, this Court would conclude that the Courts below have not applied the principles of law erroneously to treat the suit within limitation. The finding recorded by the Courts below that the suit was within time, has been arrived at by correct application of law, in the facts and circumstances of the case. The substantial question of law is, thus, answered against the appellant/defendant and in favour of the respondent/ plaintiff.
The instant second appeal fails and is hereby dismissed. There shall be no order as to costs.
Second Appeal No.215 of 2006
This appeal has been preferred by the plaintiff Madan Lal Gupta challenging the said part of the decree passed by the trial Court, whereby his suit for declaration of title and possession with respect to part I-B, the area marked in red colour dotted with the boundary ?, ?, ?, ? has been dismissed. The plaintiff had preferred a cross-appeal before the first appellate Court against the said part of the decree passed by the trial Court. The first appellate Court, while dismissing the plaintiffs cross-appeal and while partly allowing the defendant''s first appeal, has further directed that the defendant has not encroached over the area I-A marked in blue colour dotted with letters ?, ?, ?, ? in addition to confirming the trial Court''s refusal to pass a decree in favour of the plaintiff for the area I-B marked in red colour dotted with ?, ?, ?, ?
It appears that the letters ? and ? are one and the same as in some places the area marked in blue colour has been referred as, ?, ?, ?, ? (paragraph 4 of the trial Court''s judgment) and in some part as ?, ?, ?, ? (in paragraph 51.2 of the appellate Court''s judgment and clause 2 of the appellate Court''s decree).
While considering the evidence to answer and adjudicate issues No. 10 and 11 as to whether the plaintiff is entitled to seek a declaration for the area ?, ?, ?, ?, ?, ? i.e., the main composite suit area and further as to whether the plaintiff is entitled to recover possession of the area ?, ?, ?, ?, ?, ?, ?, ?, ? and ?, ?, ?, ? the trial Court, after an elaborate discussion has held that the sale in favour of the plaintiff for the area ?, ?, ?, ? which includes the area I-B marked in red colour is illegal and as such the plaintiff is entitled to seek a declaration of title only for the area ?, ?, ?, ? which includes the area I-A marked in blue colour. The trial Court''s finding was based upon appreciation of the documentary evidence, i.e., the sale-deeds Ex.P-21 and Ex.D-1 as well as the oral evidence together with the Commissioner''s report.
The first appellate Court, on re-appreciation of the documentary as well as the oral evidence, has recorded the finding that the plaintiff has proved his title and is entitled to obtain possession with respect to the main composite suit area excluding the area I-A marked in blue colour and the area I-B marked in red colour.
While admitting this appeal, this Court has framed the following substantial question of law for determination:
Whether findings recorded by the courts below that the defendant has not encroached over the portion ?, ?, ?, ? and ?, ?, ?, ? is perverse?
The plaintiff has produced Ex.P-1 and P-2, which are two registered sale-deeds by which the suit land was purchased from the original owner Amol Singh. As against this, the defendant has produced his earlier sale-deed Ex.D-1 from the same vendor Amol Singh. The main dispute between the parties was as to what area was purchased by the defendant in his prior sale-deed and that whether the area was 40 feet x 80 feet as claimed by the plaintiff or it was 140 feet x 180 feet as claimed by the defendant. The plaintiff has instituted, a criminal case against the original defendant on the accusation that Ex.D-1 was in fact for an area 40 feet x 80 feet, but when the dispute started and he lodged a report with the police and the police asked both the parties to submit their respective sale-deeds initially the sale- deed presented by the defendant was for an area 40 feet x 80 feet however, when he came back to his house to bring his own sale-deed and went back to the police station after few hours, the area mentioned in the defendant''s sale-deed Ex.D-1 was interpolated and the figures 40 feet x 80 feet were made as 140 feet x 180 feet by prefixing figure 1 in front of figures 40 and 80. The criminal case came to an end when the original defendant died and thus there was no adjudication about the guilt of the defendant accused. In the civil suit, both the parties led evidence and the Commissioner was also appointed. The boundaries mentioned in both the sale-deeds along with the oral statement have been discussed at length by the Courts below. Both the Courts have concurrently held that if in his (sic) the defendant would have purchased an area of 140 feet x 180 feet, no land would have remained with the common vendor to subsequently execute the sale deeds in favour of the plaintiff. Reading the contents of the two sale deeds. Ex.P-1 in favour of the plaintiff and Ex.D-1 in favour of the defendant, both the Courts have found that the plaintiffs evidence that he had purchased the remaining land from Amol Singh after excluding the area 40 feet x 80 feet, which was earlier sold by Amol Singh to the defendant appears more probable and convincing. Thus, the finding that the area ?, ?, ?, ?, ?, ?, ?, ? belongs to the plaintiff and he is entitled to obtain possession thereof recorded by the first appellate Court is pure finding of fact.
The appellant has tried to demonstrate before this Court that dismissal of his suit with respect to the area I-A marked in blue colour and the area I-B marked in red colour is illegal and the finding that the defendant has not encroached on this area is perverse.
Having gone through the evidence on record, this Court is satisfied that the appellate Court, being the final Court regarding finding of fact, has not committed any error in appreciation of evidence. The finding recorded by the first appellate Court regarding the area I-B marked in red colour is a concurrent finding as the trial Court had also dismissed the plaintiffs suit for the area marked in red colour. The finding recorded by the appellate Court to the effect that the plaintiff has failed to prove his title as well as the encroachment made by the defendant in the area I-A marked in blue colour is also a finding of fact, though not a concurrent one, however, on examination of the evidence, it appear that the said finding recorded by the first appellate Court is not perverse. The substantial question of law framed by this Court is, thus, answered against the appellant/plaintiff. In the result, the instant second appeal, preferred by the plaintiff, challenging dismissal of his suit with respect to the area I-A marked in blue colour in the plaint map and the area I-B marked in red colour in the plaint map, is dismissed. There shall be no order as to costs.