Dismissed

gayaram and Anr. v. raja ram and 2 Ors.

Allahabad HC4 Feb 2020SAPL/124/2018

Case brief

AI extract

What is this about?

In this second appeal, the appellate court examined objections to the Trial and First Appellate courts' reliance on the Commissioner Report regarding disputed land. The court held that the plaintiff's own admission during cross-examination validated the Report's contents, finding no perversity in the lower courts' decision that the sahan was not the plaintiff's property. Consequently, the second a

What did the court decide?

The second appeal filed by the plaintiff, challenging the judgment and decree below, is dismissed with no order as to costs.

gayaram and Anr. Vs raja ram and 2 Ors. — Property and Title | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 124 of 2018

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Appellant :- Gayaram And Anr Respondent :- Raja Ram And 2 Ors. Counsel for Appellant :- Sheetala Prasad Pandey

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Hon'ble Vivek Agarwal,J.

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Heard Sri S.P. Pandey, learned counsel for the appellants.

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This second appeal has been filed by the plaintiff being aggrieved with concurrent findings of the learned courts below. Appellant challenges the judgment and order dated 02.12.2017 and decree dated 11.12.2017 passed by the learned Additional District Judge (Court No. 2), Basti in Civil Appeal No. 50 of 2011 (Gayaram and Others vs. Rajaram and Anothers) vide which learned First Appellate Court has dismissed the regular appeal and affirmed the judgment and order dated 04.11.2011 and decree dated 11.11.2011 passed by the Additional Civil Judge (Junior Division), Court No. 19, Basti in Original Suit No. 137 of 1999.

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Learned counsel for the appellant submits that plaintiff had filed a suit against the defendants for permanent injunction on the ground that land in question which was marked as A, B, C and D in the suit map is a land of 'sahan' of the plaitniff and is being used by him, but the defendants are trying to encroach upon such land. It is admitted fact that there is a public passage from north to south in east of house of the plaintiff after sahan and on east of this public passage exists the house of the defendant. According to the plaintiff, before 15 days of filing of the suit, defendant had opened a door on the western wall of his house and when plaintiff objected to such opening of a door, then dispute had arisen between the parties. It was alleged that defendant is threatening to cause construction on such land of sahan of the plaintiff with the help of his own sons and other anti-social elements.

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Learned counsel for the appellants submits that before the learned Trial Court, Commissioner Report was produced, but the learned Trial Court instead of adverting to the objections raised by the plaintiff to such Commissioner Report, has decided the suit on behalf of such Commissioner Report and therefore, the findings of the learned Trial Court suffers from the vice of non-application of mind and therefore, it is a fit case to admit the appeal and frame substantial question of law in above terms.

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Learned counsel for the appellants submits that learned First Appellate Court has accepted this aspect that learned Trial Court has erred in not adverting to the objections filed by the plaintiff-appellants to the report of the Commissioner and has decided the suit without analyzing such objections raised by the plaintiff, but has on it own adverted to the objections and has held that as per the document no. 13-C, Advocate Commissioner Report, when Advocate Commissioner had reached the place of the dispute, then he had met the plaintiff. Defendant was not present. Inspection was carried out in the presence of the plaintiff and map no. 14-C was prepared. It has been further observed that it is apparent from the map no. 14-C that the land in dispute i.e., sahan has been shown 23 feet away from the north-east corner of house of the plaintiff and in fact, in the west of the sahan just adjoining the sahan, house of the defendant has been shown.

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Plaintiff's objections was to the effect that there is a baramdah on the north, south and east of the plaintiff's house and just in front of that sahan is there but Commissioner has not shown sahan in his map. Similarly, Commissioner has not shown the correct position of the property of the defendant. There is no wall around the disputed property and it has been wrongly shown to be surrounded with 8 feet high wall.

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In this context, learned First Appellate Court has analysed the evidence adduced by PW-1 who admitted in his crossexamination that after filing of the suit, he took the Advocate Commissioner to the site. Whatever was seen by the Commissioner has been mentioned by him in his report. In view of such admission of the plaintiff that Commissioner had recorded the places in his spot map as were seen by him, the objections raised by the plaintiffs have been discarded.

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After hearing arguments and going through the record, I am of the opinion that there is no perversity in the findings recorded by the learned First Appellate Court in regard to the authenticity of the Commissioner Report which has been duly tested and verified on the touch stone of the cross-examination of PW1plaintiff and therefore, the finding of the learned First Appellate Court to the effect that sahan is not a part of the property of the plaintiff and is not adjacent to the house of the plaintiff is a finding of the fact which does not call for any interference in this second appeal.

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This second appeal, therefore, fails and is dismissed.

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Order Date :- 4.2.2020 Vikram/-

gayaram and Anr. v. raja ram and 2 Ors.

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gayaram and Anr. v. raja ram and 2 Ors.

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