Heard Shri Imaran Khan, holding brief of Shri W.H. Khan, learned counsel for the appellant and Shri Rajendra Kumar, learned counsel for the respondents.
The present appeal has been preferred against the judgment and decree dated 23rd August, 1995 passed by the VI Additional Civil Judge (J.D.) Ghazipur and judgment and decree dated 24.4.2002 passed by Ist Additional District Judge, Ghazipur dismissing the original suit no. 432 of 1983 and Civil Appeal no. 173 of 1995 filed by the plaintiff/appellant.
The suit was filed for relief of permanent injunction and demolition of the alleged construction made over the land shown by letters E,F,G,H, at the foot of plaint and not to interfere in possession of plaintiff over Sahan of the house of plaintiff/appellant shown by letters I,J,K,L.
The suit was filed on 23.12.1982. In paragraph-9 of the plaint, it was contended that defendant -respondent started raising construction on 20.12.1982 over the land of plaintiff/appellant and as such cause of action for filing present suit arose. On account of the fact that the defendant-respondents were raising construction over the disputed land since 20.12.1982, an advocate commissioner was immediately appointed by the court on 24.12.1982 and he visited disputed site on the same day and submitted his report on 15.3.1983. The plaint, written statement, commissioner report and statements of P.W.1 plaintiff are on record.
The suit was tried and issue no.1 was framed with regard to title and possession of the plaintiff over the disputed land namely alleged house shown by letters E,F.G,H and Sahan shown by letters I,J,K,L.
The evidence of the defendant was closed by the trial court for the reason that he had failed to give the same within time and further suit proceeded ex parte against the defendant. The trial court while deciding the issue no.1 discussed the oral and documentary evidence brought on record by the plaintiff and concluded that the plaintiff had failed in establishing his title over the disputed land. The documentary evidences filed by the plaintiff were Khasra paper no. 40 Ga, and 41 Ga, the map.
The plaintiff appeared in the witness box and examined himself as P.W.1 and in his cross-examination he stated that disputed land which is recorded in the name of Karimbux, belonged to plaintiff as nick name of his father was Karimbux.
The trial court further considered the documentary and oral evidence and recorded the finding that plaintiff has not given the number of the disputed land in his plaint and as such it cannot be established that the land shown in Khasra produced by him is the disputed land.
The lower appellate court has further considered that plaintiff has not mentioned in the plaint that land in suit belongs to Karimbux, whose name is entered in the Khasra paper no. 40 Ga.The plaintiff P.W.1 in his cross-examination also failed to give number of the land of the suit . The statement of the P.W.1 that nick name of his father is Karimbux cannot be accepted as while filing the suit he has mentioned his father's name Ghurahu. He has further failed to prove that Ghurahu and Karimbux are one and the same person.
In view of the above discussion, the documentary evidence, Khasra paper 40 Ga produced by the plaintiff to establish his title over the suit property was disbelieved by both the courts below and concurrent findings of fact was recorded that plaintiff has failed to prove his title over the disputed land in the present suit.
In so far as the question of possession over the disputed land is concerned , the concurrent findings of fact recorded by both the courts below as per statement of witnesses P.W.1 i.e. plaintiff and P.W.2 namely Khurshid is that they themselves had admitted the possession of the defendant-respondent over the disputed property.
The court below considered that P.W.1 in his examination in-chief had stated that the defendants had taken possession of land forcibly 10-11 years back prior to filing of the suit by him. In his cross examination he submitted that there were two rooms exist over the disputed land and defendant had been residing in the same along with his family.He further submitted that defendant was doing work of "Bharsai"(work of roasting) over the disputed land .The lower appellate court also considered the statements of P.W.1 and P.W.2 and both the courts below have came to the conclusion that plaintiff had failed to prove his title as well as possession over the land in suit and further failed to prove that he had possession over the disputed land in the suit within twelve years from the date of institution of the suit. Moreover suit is bad for non-joinder of the parties namely Shiv Nath who is the brother of the defendant and has claimed half share in the disputed land.
From the perusal of the findings of both the courts below and documents on record, the irresistible conclusion is that plaintiff-appellant has failed to prove his case. The concurrent findings of fact recorded by both the courts below are based on meticulous appreciation of oral and documentary evidences on record. No substantial question of law arises in the present appeal.
The appeal is dismissed as such.
Order Date :- 25.9.2012 Atul kr. sri.