Dismissed¶14

Ramadhin v. Braj Bahadur and 2 Others

Allahabad HC10 Feb 2020SAPL/667/2017

Case brief

AI extract

What is this about?

Second Appeal No. 667 of 2017, decided 10.2.2020 (Vivek Agarwal, J.). Ramadhin (appellant, through Gopal Chandra Saxena) v. Braj Bahadur and 2 others. Challenge to judgment dated 18.4.2017/decree dated 2.5.2017 of Additional District Judge, Farrukhabad in Civil Appeal No. 23 of 2013, affirming dismissal of O.S No. 399 of 2002 (decided 13.1.2013, Civil Judge JD, Farrukhabad) — suit for mandatory injunction over alleged encroachment on area C,D,E,F of plaintiff's Sahan in Survey Nos. 359 and 360. Held: no evidence of partition produced; Amin Commissioner report showed constructions old; no substantial question of law; appeal dismissed.

What did the court decide?

The appellants failed to produce any evidence in regard to the partition, and the court below rightly dismissed the suit, which the first appellate court rightly affirmed. ¶14

Ramadhin Vs Braj Bahadur and 2 Others — Allahabad HC (2020) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the plaintiff proved a partition with Parmeshwar Dayal and exclusive receipt of the land contained in Survey No. 360. +2 more

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Court's answer

The appellants failed to produce any evidence in regard to the partition, and the court below rightly dismissed the suit, which the first appellate court rightly affirmed.

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Ratio / Principle

The plaintiff failed to prove the factum of partition and that the construction was raised during his absence; rather, the Amin's report contradicted the plaintiff's contention, from which the plaintiff cannot extract any benefit.

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Key takeaways

The judgment and decree were passed on due appreciation of evidence, do not call for any interference, and do not give rise to any substantial questions of law.ratio¶14

Detailed headnote1 paragraphs

Second appeal against the judgment dated 18.4.2017 and decree dated 2.5.2017 of the Additional District Judge, Court No. 6, Farrukhabad in Civil Appeal No. 23 of 2013, affirming the dismissal of a suit for mandatory injunction in which the plaintiff alleged that the defendants encroached upon area C,D,E,F of his 'Sahan' in Survey Nos. 359 and 360 during his absence and raised a room and varamda. The courts below found that the plaintiff failed to prove a partition with Parmeshwar Dayal or exclusive receipt of the land in Survey No. 360, and failed to prove encroachment during his absence; the Amin Commissioner's report showed the constructions to be old. Before this Court, counsel's submissions that the partition document (Annexure-6) bore no date or signatures of the parties, and that the suit survey numbers could not be dovetailed with the revenue map, went unexplained. Holding that the appellants produced no evidence of partition, that the Amin's report contradicted the plaintiff's contention, and that the judgment and decree rested on due appreciation of evidence raising no substantial question of law, the Court dismissed the appeal.

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Court No. - 53

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Case :- SECOND APPEAL No. - 667 of 2017

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Appellant :- Ramadhin Respondent :- Braj Bahadur And 2 Others Counsel for Appellant :- Gopal Chandra Saxena

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Hon'ble Vivek Agarwal,J.

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Heard Sri Gopal Chandra Saxena, learned counsel for the appellant.

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This second appeal is filed against the judgment dated 18.4.2017 and decree dated 2.5.2017 passed by learned Additional District Judge, Court No. 6, Farrukhabad in Civil Appeal No. 23 of 2013 (Smt. Jai Devi and another Vs. Braj Bahadur and others) arising out of judgment and decree dated 13.1.2013 passed by learned Civil Judge (JD), Court No. 13, District Farrukhabad in O.S No. 399 of 2002.

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It is submitted by counsel for the appellant that plaintiff Hukum Singh filed a suit for mandatory injunction against the defendants alleging that as per suit map A,B,C,D is ‘Sahan’ of the plaintiff. The defendants have encroached on area marked as C,D,E,F and, therefore, suit was filed seeking mandatory injunction against the defendants to remove their encroachment from area marked as C, D,E,F and thereafter claiming possession on this area C, D, E, F through the process of court and further seeking decree of permanent injunction not to interfere in the peaceful usage of A, B, C, D area.

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In the plaint, it is mentioned that suit is being filed in relation to Survey No. 359 and 360. It is plaintiff's contention that plaintiffs received land contained in survey No. 360 in a exclusive manner, whereas Parmeshwar Dayal S/o Moni got different land in view of land contained in Survey No. 360. It is further mentioned in the plaint that land contained in Survey No. 359 is land of ‘Sahan’ of house of the plaintiff situated in Survey No. 373 and 397. Plaintiff Hukum Singh is only legal heir and legal representative of Gopi, Bhagwan and Ujagar. Basanti is w/o Ujagar. After death of Ujagar,

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Basanti had married father of the plaintiff namely Suraj Pal and the house of the plaintiff situated at Survey No. 273 and 397 is on east of the disputed land. Since times of abolition of Zamindari, land marked as A,B,C,D is in possession of the plaintiff. It was alleged that plaintiff was away from his home to attend obligations in his relationship for a period of 2-3 months then defendants taking advantage of such absence encroached an area marked as C.D.E.F and made it part of their house. They constructed a Room and Varamda and are trying to interfere in the peaceful possession of the plaintiff on the area marked as A,B,F,E.

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This suit of the plaintiff was dismissed by the trial court after recording categorical finding that plaintiff has failed to prove from their evidence which has come on record to show that Parmeshwar Dayal was a member of the same clan as that by the plaintiff and any partition had taken place with Parmeshwar Dayal. Accordingly plaintiff failed to discharge burden that they received land contained in Survey No. 360 in an exclusive manner. It has also come on record that plaintiff failed to prove that defendants have encroached upon the land marked as C,D,E,F in absence of the plaintiff and accordingly dismissed the suit.

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In fact, Amin Commissioner Report is available on record in which it has come on record that the constructions appears to be old.

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During course of argument learned counsel for the appellant submits that document showing partition is Annexure-6, and this document has not been considered by the learned courts below. However, admitted that document (Annexure-6) does not contain any date nor it contains signatures of any of the parties amongst whom so-called partition took place and in view of such facts this document cannot be considered to be a proof of partition. Similarly, counsel for the appellant is at loss to explain that unless and until revenue map would have been super imposed on the suit map now position of respective survey numbers, which are subject matter of dispute, could have been ascertained. The whole exercise of claiming possession on particular survey numbers mentioned in the suit could not be dovetailed with the revenue map. Thus whole exercise is in vacuum.

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After having admitted this fact they have failed to produce any evidence in regard to partition, court below has rightly dismissed the suit and first appellate court has rightly affirmed the judgment passed by the learned trial court and there is no infirmity in the impugned judgments in the light of discussion made above and also in the light of the facts recorded by the courts below that plaintiff failed to prove factum of partition and construction being raised during his absence rather Amin’s report contradicted the contention of the plaintiff of which plaintiff can not extract any benefit. Thus the judgment and decree being passed on due appreciation of evidence does not call for any interference and does not give rise to any substantial questions of law. The appeal fails and is dismissed.

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Order Date :- 10.2.2020 S.K.S.

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Ramadhin v. Braj Bahadur and 2 Others

Case brief

What is this about?

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Ramadhin v. Braj Bahadur and 2 Others

Case brief

What is this about?

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