Laxmichand Gupta And Ors vs Satyanarayan Gupta And Ors

Ram Prasanna Sharma, J

1) This appeal is preferred under Section 96 of the Code of Civil Procedure, 1908 against the judgment/decree dated 18-1-2001 passed by the 2nd Additional District Judge, Ambikapur, District Sarguja (CG) in Civil Suit No. 2A/98 wherein the said court dismissed the suit filed by the appellant/plaintiff for getting possession of one godown situated at survey No. 1052 area 80 x 40 feet shown in the map attached with plaint.

2) as per version of the original appellant/plaintiff, his father namely Motilal and father of original respondent No.1 namely Moharlal Gupta were real brothers. The land bearing Khasra No.1053 area 4.02 is self acquired property of Motilal and in earlier suit decree was passed in his favour. The godown in question was given to original defendant/respondent Satyanarayan. Motilal died in the year 1994. Respondent was in possession of the godown in question, but when the original appellant demanded the said godown, the original defendant/respondent refused to return back possession of the said property that is why suit was filed which was dismissed.

Learned counsel for the appellants would submit as under:

i) There is ample evidence on record to show that the property was acquired by Motilal, therefore, finding of the trial court that it has not been proved that the original respondent was licensee, is without substance.

ii) The original appellant and original respondent were cousins and there was cordial relation between them, therefore, expectation of the agreement in writing for delivery of possession of the said godown is not proper.

Iii) In case of decree, the location of the property was easily demarkable for the purpose of delivery of possession, therefore, finding of the trial court is liable to be set aside.

Reliance has been placed in the matter of Sodhuram vs. Durga Prasad and others, reported in (2006) AIR (CG) 136, R.V.E. Venkatachala Grounder vs. Arulmigu Viswesarswami & V.P. Temple and another, reported in (2003) 8 SCC 752

On the other hand, learned counsel for the respondent would submit that the finding of the trial court is based on proper marshalling of the evidence which is not liable to be interfered with while invoking jurisdiction of the appeal. Reliance has been placed in the matter Suraj Bhan and others vs. Financial Commissioner and others, reported in (2007) 6 SCC 186.

I have heard learned counsel for the parties and perused the record of the court below in which judgment and decree has been passed.

6 The only question for consideration of this court is whether the original appellant delivered possession of the godown in the year 1994. No written agreement was filed before the trial Court that godown was handed over to original respondent by the original appellant. From the evidence of original appellant's witnesses, namely Sushil Kumar (PW/2) and Bhuvneshwar (PW/3), it is not established that the said godown was handed over to original respondent. On the contrary, respondent deposed before the trial court that he is in possession of the property since life time of his father, therefore, the appellant was required to establish the date of delivery of possession to original respondent but no written agreement was produced before the trial Court and oral evidence adduced on behalf of the original respondent was not sufficient to hold that the original appellant was in possession of the godown in the year 1994.

A suit for possession on the basis of title can be filed within 12 years as per Section 65 of the Limitation Act, 1963, but in the present case, it is not established whether the original appellant was ever in possession of the said godown. The trial Court recorded the finding that the parties were having litigation for the property for years together and therefore, it is not possible that any property was delivered to others without reducing the same in writing and that too without rent. The trial Court recorded that it cannot be held that the original respondent was lessee of original appellant. It is further held by the trial Court that it is not clear on which part of survey No.1053 godown is existing. Therefore, when the property in question is not ascertainable, no executable decree can be passed in favour of the appellant.

After re-assessing the entire evidence adduced by both the parties, this court has no reason to record contrary finding. No court can pass unexcutable order. Looking to the evidence, the pleadings of the original appellant were not at all proved. Case laws cited by learned counsel for the appellants do not help to them as the same are distinguishable to the facts of the present case. The appeal is liable to be dismissed.

9) Accordingly, decree is passed in favour of respondents and against the appellants as under:

(i) The appeal is dismissed with cost.

(ii) Parties to bear their own costs.

(iii) Pleader's fee., if certified, be calculated as per Schedule or as per certificate whichever is less.

(iv) A decree be drawn up accordingly.