Smt. Kailashpati Vs Tilakram and Another

Court No. - 53

Case :- SECOND APPEAL No. - 513 of 2018

Appellant :- Smt. Kailashpati Respondent :- Tilakram And Another Counsel for Appellant :- Tripathi B.G. Bhai

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Hon'ble Vivek Agarwal,J.

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Heard Sri Tripathi B.G. Bhai, counsel for the appellant.

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This second appeal has been filed by the plaintiff being aggrieved of the judgment and order dated 02.02.2018 and decree dated 16.02.2018 passed by learned Additional District Judge, Bansi, Siddharth Nagar in Civil Appeal No.54 of 2008, Smt. Kailashpati Vs. Tilak Ram and another confirming the judgment, order and decree dated 07.05.2008 passed by learned Civil Judge, Junior Division, Bansi, Sidharth Nagar in original suit no.28 of 1995.

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Appellant's contention is that plaintiff had filed a suit for permanent injunction against the defendants on the ground that he is resident of Village-Bangawa Tappa Hallaur, ParganaRasoolpur, District-Sidharth Nagar and as land contained in Gata No.216 besides other land which are recorded in the name of the plaintiff. During Chakbandi, new numbers were instituted and she has been residing in the portion marked as A.B.C.D in the suit map as the owner and possessor. Defendant is resident of District-Gonda and with a view to do business, he had taken premises marked as A.B.C.D. on rent and carried out his business from such shop. When in January, 1985, plaintiff demanded rent for December, 1984, then defendant sought time to pay the rent on one or the other pretext and thereafter plaintiff came to know of the fact that defendant intends to enter into a fabricated transaction of transfer of the property so to harass the plaintiff and when plaintiff tried to clarify this fact

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from the defendant on 14.01.1985 then he started quarreling with the plaintiff, as a result of which suit was filed.

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Defendant filed a written statement vide document no.28-Ka and accepted certain contentions and denied the remaining and made specific averment to the effect that plaintiff has no cause of action to file a suit. Defendant averred that from the times of the Zamindari, the property was that of Ibne Hasan, Mohd. Muste Hasan, Aaka Hasa, Taukir Hasan and Ali Haidar which was purchased by the defendant no.1 vide registered sale deed dated 19.04.1973 for a sale consideration of Rs.300/- and since then defendant no.1 is owner and possessor of the suit property and after death of defendant no.1, his legal heirs defendant nos.1/1 and 1/2 are owner and possessor of the suit property. They further averred that plaintiff three years prior to the filing of the suit purchased a portion contained in Arazi No.216 from said Ibne Hasan, Mohd. Muste Hasan, Aaka Hasa, Taukir Hasan, Ali Haidar and Jabaj Hussain and has constructed house of two rooms on East of the defendant and is staying in that portion. Defendants were never tenant of the plaintiff and there is no relationship of landlord and tenant between the plaintiff and the defendants.

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Learned trial court framed as many as eight issues and recorded a finding in regard to issue no.1, as to whether plaintiff is entitled to a relief of permanent injunction in relation to land situated at Gata No.216 and found that after Chakbandi Arazi No.216 has been renumbered as 410 and 411. Plaintiff had filed a copy of family register dated 25.05.1985 vide document no.30-Ga in which name of Kailashpati is mentioned as owner and head of family of house no.138. It also found that plaintiff had filed a 'Naksha Nazri' vide document no.13-Ga(2) in which residential area of the plaintiff is shown separately from the

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disputed area A.B.C.D. It found that the residential area of the plaintiff is being separated from disputed area A.B.C.D. by a narrow lane in which a drain is shown. Plaintiff also admitted a fact that there is no passage between the two properties. It has also come on record that earlier a suit no.247 of 2001 was filed between the Lalayi Vs. Smt. Kailashpati from which it is evident that in the record of that suit, Arazi No.215, 'Chakroad' has been shown between the house of the Kailashpati and the disputed land A.B.C.D. It also found that as per the field book width of this passage is about 10 feet. Trial court found that there is lack of clarity and consistency in the evidence of the plaintiff and also found that though, plaintiff deposed that she use to issue a receipt whenever Ram Pratap use to pay rent but she had not filed any of the rent receipts on record.

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Thus doubting the contention of the plaintiff both on the basis of the record and the pleadings and appreciating the evidence of P.W.-2, who admitted that he is not aware of the fact as to who is the owner of the disputed land and on the other hand evidence of D.W.-1 and D.W.-2 more specifically that of D.W.2, who is also a witness to the sale deed executed in favour of the defndant, suit has been dismissed.

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Learned first appellate court too has confirmed these findings and has placed specific reliance to the evidence given by D.W.2 who has categorically mentioned that disputed house and its Sahan is owned by Tilak Ram and his mother and they use to reside in the said house. Said house and its Sahan was purchased by Ram Prasad from Ibne Hasan, Mohd. Muste Hasan, Aaka Hasa, Taukir Hasan etc. vide registered sale deed dated 19.04.1973 and he had constructed two pucca rooms and on appreciating the evidence led by the plaintiff and her witnesses to be not reliable, has dismissed the appeal. Learned

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first appellate court has also taken into consideration the report of the spot Commissioner who stated that he had prepared the report on the spot in the presence of both the parties. Spot Commissioner deposed that as per his field book and site plan two rooms on the Southern side have been constructed and Sahan is towards Northern side and after Sahan there is a road. On the Eastern side of the disputed area, there is a 'Nali' and thereafter there is house of plaintiff. This corroborates with the findings of the trial court that in fact the disputed property is not that of the plaintiff but belongs to the defendant.

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In view of such appreciation of evidence which has come on record and also taking into considertation five sale deeds which were procuded by the plaintiff-appellant before the first appellate court staring from 03.08.1979, 31.8.1979, 30.10.1979, 13.11.1979 and 18.07.1980, Court has drawn a finding that the property which was already transferred in the year 1973 could not have been re-conveyed through subsequent sale deed and plaintiff could have only purchased remainging part of the plot which has been admitted by the defendant. Plaintiff has got right and title over that portion of the plot no.216 which was not sold in favour of the defendant no.1 vide registered sale deed dated 19.04.1973. It also recorded a finding that suit has been filed on the basis of wrong facts and the trial court did not err in dismissing the suit.

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Learned counsel for the appellant submits that judgment and decree passed by the trial court are perverse and courts below have illegally discarded the evidence led by the plaintiff and have wrongly dismissed the suit too and the first appeal thereafter.

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However, learned counsel for the appellant could not explain, as to why, no relief for cancellation of the sale deed dated

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19.4.1973 was claimed by the plaintiff. Whether plaintiff ever approached the Court for demarcation of the land purchased by her under different sale deeds with that of the defendant, learned counsel for the appellant fairly admits that plaintiff had not taken any of such steps either before the trial court or before the first appellate court.

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In view of such facts, this Court is of the opinion that courts below have not erred in dismissing the suit for permanent injunction on due appreciation of evidence which has come on record, inasmuch as, plaintiff prima facie failed to discharge her burden that she is owner of the disputed land marked as A.B.C.D. in the plaint especially when defendant could prove purchase of such property prior to the plaintiff in the year 1973.

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Therefore, this second appeal against the concurrent findings of fact does not give rise to any substantial question of law. Thus, appeal fails and is dismissed.

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Order Date :- 20.2.2020 Ashutosh

Smt. Kailashpati v. Tilakram and Another

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Smt. Kailashpati v. Tilakram and Another

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