Smt. Sahidan vs Shri Shankar

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the parties.

This second appeal was admitted on 11.10.1984 on the following substantial question of law:

Whether the courts below have erred in holding that the boundaries of the disputed property did not include the house?

This is plaintiff''s second appeal arising out of Original Suit No.34 of 1979 dismissed on 23.12.1980 by Munsif, Robertsganj District, Mirzapur. Against the said decree plaintiff-appellant filed Civil Appeal No. 10 of 1981 which was dismissed by IV Additional District Judge, Mirzapur on 16.3.1983 hence this Second Appeal. The case of the plaintiff-appellant was that Nathu father of the defendant through registered sale deed dated 9.6.1971 sold plot no.177 to the plaintiff which contained a house shown by letters A,B,C,D in the plaint map, however, it was agreed between the seller and the purchaser that Nathu the seller would continue to reside in the house in dispute upto Jeth Pooranwasi (full moon of the month of Jeth 3rd month of Hindi calender) 1971-72. It was further pleaded that thereafter possession was demanded but father of the defendant showed his inability to deliver possession, similarly after the death of Nathu, defendant was asked to deliver possession however, he also refused to deliver possession. The suit was filed for possession and for permanent injunction restraining the defendant from raising any construction adjoining to the disputed house.

Defendant filed written statement pleading that house in dispute was situate in plot no.176; that there was a small temporary house constructed by defendant''s father in Plot No.177 (which was sold) possession of which was given by him to the plaintiff in 1972. Defendant denied that he was raising any construction in plot no. 177. He did not claim any right over plot no.177. He further contended that in plot number 177 a house had been constructed by the plaintiff which was in her possession.

Plaintiff''s husband appeared in the witness box and stated that he had not obtained any sale deed of the disputed house and he had paid an amount of Rs.500/-independent of the transaction of the sale and had obtained the agreement in respect thereof. The courts below from this statement rightly inferred that the whole case of the plaintiff stood demolished. In the plaint it was stated that the house in dispute was included in the sale deed dated 9.6.1971. However, plaintiff''s husband in his oral statement stated that it was not so included and regarding it a separate agreement had taken place for which additional amount of Rs.500/-had been paid. This theory of agreement and payment of Rs.500/-does not find place in the plaint. The sale deed describes the sold area to be 1.5 bigha. Plaintiff''s husband in his oral statement stated that he had purchased the agricultural land at the rate of Rs.1,000/-per bigha. Accordingly the amount of Rs.1,500/-was for 1.5 bigha land. In the sale deed plot number and area mentioned are 177 area 1 bigha and plot no.175 area 0.5 bigha. In the sale deed there is no mention of any house which may have been sold by the seller Nathu Ram to the plaintiff. The courts below also rightly held that house could not be sold for Rs.500/-without registered sale deed. The courts below also found that total area of plot no.177 was 2 bigha and only 1 bigha area of this plot was sold to the plaintiff hence in the revenue record also she was shown to be bhoomidhar/owner of one bigha of plot no. 177 and the remaining 1 bigha area of the said plot was shown in the ownership of the defendant.

Accordingly, the substantial question of law framed in this Second Appeal at the time of admission is decided against the appellant and in favour of the defendant.

Second Appeal is therefore dismissed.