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Abdul Majid and Others v/s Abdul Gaffar and Others

    Second Appeal No. 2435 of 1986

    Decided On, 20 March 1996

    At, High Court of Allahabad

    By, J.

    For Petitioner: I.N. Mishra, Jai Prakash Pandey and V.S. Saxena, Advocates And For Respondents: Murlidhar and R.B. Singh, Advocates

Judgment Text

1. The present appeal is directed against the judgment and decree dated 30.9.85 passed by the Additional District Judge, Gyanpur (then in the district of Varanasi) in Civil Appeal No. 25 of 1984. The first appellate court had allowed the appeal before it and had dismissed the suit of the Plaintiff-Respondents which was allowed and decreed by the Munsif, Bhadohi, at Gyanpur in original Suit No. 94 of 1983 on 10.9.84. Thus the Plaintiffs aggrieved by the first appellate judgment, preferred this appeal.

2. Plaintiffs had filed the suit for permanent injunction against the Defendants for restraining them from interfering in the possession of the Plaintiffs on the suit property. The Plaintiffs annexed a map with it showing a piece of land by the letters Ka, Kha, Ga and Gha. It also described this area by its boundary. This land lay to the south of the residential plot of the Plaintiffs and they were in possession thereon as owners. This land was a part of plot No. 151. One Sri Rai Bahadur Singh Baghel was the owner of this plot 151. He agreed to settle this land with the Plaintiffs on 30.1.1977 and had received Rs. 90 for this purpose. After his death, his widow settled this land in favour of Plaintiffs on 18.12.1982 and the Plaintiffs continued to be in possession thereon. They had a chabutra on it and there was a drain running towards south from the residential house of the Plaintiffs through this land flowing into a ditch to the west. The Plaintiffs had their cattle trough, etc. also on this land. The Defendant had no manner of right title or occupation on this land but they were giving out threats for unlawfully occupying the same. This prompted the filing of the suit.

3. The case of the Defendants was that the suit property was a part of plot No. 151 and it belonged to Rai Bahadur Singh Baghel. It was staled that the Plaintiffs have no concern with it nor they had ever remained in possession of it. The written statement was also appended with a map in which the disputed land was shown by the words Ta, Tha, Da, Dha. This land was adjacent to the residential house of the Defendants. The original owner Rai Bahadur Singh Baghel had settled the disputed land with Defendant No. 2 Bismillah as far back as on 2.12.1955 on a consideration of Rs. 300. Since then, Eismillah had been in possession thereof. He used to irrigate his field through a Nali made on this land. Bismillah had sold this land to Abdul Gaffar for Rs. 50,000 on 10.12.1982 and had delivered possession to Gaffar. Since then, the Defendant Abdul Gaffar was in possession of the disputed land. Rai Bahadur Singh Baghel or his widow had no right to settle the land afresh with the Plaintiffs in 1977 or 1982. It was stated that the Plaintiffs intended to buy the land from Bismillah and when they failed to do so and the sale in favour of Abdul Gaffar was made: on 10.12.1982, the Plaintiff came up with the false plea of settlement dated 18.12.1982.

4. The trial court framed issues on the points of possession and title of the disputed land as also on the questions of valuation, limitation, adverse possession and relief. It was found by the trial court that the suit was properly valued. On the question of right, title and possession and the plea of adverse possession by the Plaintiff, the trial court decided the issues in favour of the Plaintiffs. He also found that the suit was not barred by limitation. Accordingly, he decreed the suit against Defendant Nos. 1 and 2 restraining them from creating any disturbance on the suit property in the peaceful possession of the Plaintiffs and Defendant No. 3.

5. The Defendants preferred the aforesaid first appeal (C.A. 25 of 1984). The first appellate court believed the case made out by the Defendants and disbelieved the case of the Plaintiffs on the ground that the original lease deed dated 18.12.82 was not produced and the executant thereof was not examined. He drew an adverse inference against the Plaintiffs for not producing the best evidence which he was able to produce. The learned first appellate court was of the view that in the year 1982, the Zamindar had no authority to settle the land, as his right was already abolished by the U.P. Urban Areas Zamindari Abolition Act, w.e.f. 26.1.76 at Bhadohi. He also discarded the alternative theory of the Plaintiffs that the Plaintiffs had acquired any right by adverse possession on the suit property. He was further of the view that mere tethering of cattle on the land or keeping straw, legs, etc., would not amount to possession, far less adverse possession. Upon such findings, the first appellate court had allowed the appeal before it and had dismissed the suit of the Plaintiffs.

6. This appeal was preferred on several grounds but it was admitted only on one substantial question of law as framed in the memo of appeal at point B. The question was whether the first appellate court failed to consider the boundaries of the land in suit given in the Patta dated 2.12.1955 and the sale deed dated 10.12.1982. It is an undisputed fact that plot No. 151 was a big plot, a part whereof was in the possession of the Plaintiffs and another part was in possession of the Defendants. The Plaintiffs claimed an area of 1 Biswa and 9 Dhurs. This was on the basis of exhibit 4. The deed of lease indicates the land settled as plot No. 151/6 and its area was described as 1 Biswa and 9 Dhurs. The boundary thereof was described as East : the public road, West : Ditch, North : House of the Plaintiffs and South : house of Bulla and land of Bismillah. In the settlement in favour of Bismillah, the area was described as 15 Dhurs and the plot was marked as 151/3. The boundaries were shown as East : Public road, West : ditch, North; rest of plot No. 151 and South-Bhejai. The said area and boundary were also shown in the sale deed of Bismillah in favour of Abdul Gaffar but the plot was described as 151/1.

7. Undoubtedly plot No. 151 stood between the houses of the Plaintiffs and the Defendants. Findings of fact are there that the Defendant was settled 15 Dhurs of plot No. 151 as far back as in 1955. The boundary of the land so settled indicates rest of plot No. 151 towards north which suggests that the southern portion of plot No. 151 was settled with the Defendants. The Plaintiffs or the Defendants did not bring any paper on record to show what was the total area of the land in plot No. 151. From the admitted and proven facts, it is clear that if at all the Zamindar had any right to settle any part of plot No. 151 with the Plaintiffs in 1982, it could have been only the portion beyond what was settled with the Defendants. The responsibility of bringing on record the total area of the plot No. 151 certainly lay on the Plaintiffs as the onus primarily lay on him to make out a case for an injunction. The person who could have stated as to what land was settled with the Defendants and what other was settled with the Plaintiffs was the widow of the Zamindar. The judgment of the first appellate court clearly indicates how the Plaintiffs had failed to procure her attendance and also to get her statement on commission. Thus, the finding of the first appellate court that the Plaintiff has failed to bring before the court the best evidence was a correct finding on correct approach to the matter. Whether the Plaintiffs were in adverse possession and had acquired title on that score was a question of fact which has been decided against him by the first appellate court and this may not be reopened. It was the duty of the Plaintiffs to establish the identity and extent of the suit property and there having been no endeavour on his part to do so and there being a finding of fact of possession of the Defendants since 1955 on the southern 15 Dhurs of plot No. 151, the Plaintiffs suit could not have been allowed for vagueness of description of the suit property.

8. It was contended by the learned counsel for the Appellant that the matter should have been remanded for re-consideration of the evidence by the first appellate court. I think that exercise would be a futile one as no evidence was brought on record nor was there any pleading as to what was the land that remained in plot No. 151 after the settlement of 15 Dhurs with the Defendants. It was further contended that the learned first appellate court had wrongly come to a conclusion that there had been an abolition of Zamindari for Urban properties at Bhadohi, as no paper or notification was brought on record. Even if this argument be accepted, remand would be a futile exercise as there was no case made out by the Plaintiffs regarding the total area of plot No. 151. Moreover, even if it was held that the urban property at Bhadohi had not vested and the Zamindar still retained his right to settle his land, the Plaintiffs case still suffers from the defect that once a land had been settled with one person, it was not open for the Zamindar to make a subsequent settlement of the same land to another person. That it was another land for which the settlement in favour of the Plaintiffs was made, was to be proved by the Plaintiffs after pleading necessary facts therefor. The Plaintiffs had neither pleaded nor proved this. There is no necessity, therefore, for directing a remand of this case.

9. A comparison of the boundaries of the land allegedly settled with the Plaintiffs and the one allegedly settled with Bismillah would show that the Plainti

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ffs' portion extended to the house of Bulla and Bismillah lying towards the South. Thus, the Plaintiffs claimed a portion of plot No. 151 touching , on the South, the house of Bulla and Bismillah. It has been found on facts by the court below that the Defendant got the southern portion of plot No. 151 bounded in the North by the rest of the same plot. It was, therefore, necessary, as held above, that the Plaintiffs should have come up with the total area of plot No. 151 to let the court know that the Zamindar, even after settlement with the Defendants had a further 1 Biswa and 9 Dhurs of land in plot No. 151 open to settlement with the Plaintiffs. As already held the Plaintiff suit suffered for vague description of the suit property. 10. For all these reasons and for the finding of fact arrived at by the first appellate court, I find no ground to interfere with the finding of the first appellate court. The first appellate judgment and decree is accordingly confirmed and the appeal of the Plaintiffs Appellants is dismissed.