Re: Civil Misc. Delay Condonation Application No. 7950 of 2010 Heard.
Cause shown is sufficient.
Accordingly, Delay Condonation Application is allowed and delay occurred in filing the Second Appeal is condoned.
Re: Second Appeal.
Heard learned counsel for the appellants and perused the materials on record, including the two judgments rendered the courts below, that is, the one rendered by the Trial court on 17.1.1989 and the other by the lower Appellate court on 8.10.2009.
From perusal of the record, it has emerged that the plaintiff-respondents had filed a Suit No. 431 of 1987, in the Court of Munsif, Mau (Gohna), District Azamgarh, now District Mau against the defendant-appellants for demolition of the huts (Marai) and constructions over the land in dispute and sought a permanent injunction restraining them from interfering in their peaceful possession over the land in dispute.
Seven issues were framed by the Trial court on 6.2.1988 covering the dispute raised by the plaintiff-respondents, that is, whether the plaintiffs were owner and in possession of the disputed land and the structure existing thereon?, whether the plaintiffs were entitled for demolition of illegal and unauthorised constructions and encroachments and restoration of the land. In addition to these main issues, some other legal issues were also framed, which find place in the judgments rendered by the Trial court and the lower Appellate court. The Advocate Commissioner's report was sought and the documentary as well as oral evidence were also led before the Trial court.
The main dispute raised by the plaintiff-respondents was that the defendants have encroached upon their land in dispute by raising certain constructions. It was pleaded that the defendants had transgressed about 6 fts. land (Three to four hands land as alleged by the plaintiffs). It was also alleged by the plaintiffs that the Handpipe was also installed on their land, which was denied by the defendants by saying that it was installed by the Pradhan from the Block Development's funds.
Ultimately, the Trial court, considering the pleadings of the parties and upon appraisal of evidence, oral and documentary, has partly allowed the suit recording findings of fact and arriving at a conclusion that the plaintiffs' land was transgressed. However, the Trial court has also declined to demolish the constructions raised by the defendants.
The lower Appellate court has also affirmed the findings and conclusions of the Trial court. Thus, as a result of these decisions, the dispute regarding three to four Haanths (about 6 fts. land) encroachment of the land and construction of huts etc. between the two neighbours was set at rest by the courts below after about 22 years of litigation as the Suit was instituted in the year 1987 and the judgment of the lower Appellate Court was rendered on 8.10.2009. Now the defendants appellant have approached this Court by filing the present Second Appeal.
Learned counsel for the Appellants has relied upon two judgments as reported in AIR 1976 SC 2602, Maharaj Singh v. State of Uttar Pradesh and AIR 1983 Allahabad 450, Smt. Kaniz Fatima (deceased) and another v. Shah Naim Ashraf to highlight the point that the proper issues were not framed by the Trial court.
From a perusal of the pleadings, it appears that so far as the controversy is concerned, all the issues were framed by the Trial court covering the dispute and no other issue could have been framed by the Trial court in a dispute between two neighbours of a remote Village of the District Mau regarding possession of an Abadi land, Sahan and regarding constructions and existence of Thatchet huts (Marai) having grass roofs. Both the courts below have recorded concurrent findings of fact dealing with oral and documentary evidence and upon consideration of pleadings of the parties. In my opinion, upon considering the controversy in its entirety, even the courts below have condoned the unauthorised constructions as alleged by the appellants raised on their land by encroaching about 6 fts. of land. Thus, in the opinion of this Court, all the issues covering the dispute were framed by the courts below. No ingredients as required under Section 100 of the Code of Civil Procedure were attracted in the present case requiring interference by this Court. This Court has also scrutinized this case in the light of the decisions of the Hon'ble Apex Court as reported in AIR 2008 SC 1749, Kashmir Singh Vs Harnam Singh and another, AIR 1999 SC 2213, Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others and (1995) 6 SCC 213, Kashibai W/O Lachiram and another Vs. Parwatibai W/o Lachiram and others and does not find any illegality or infirmity in the judgments of the courts below. In view of the discussions made above, no substantial question of law arises to be considered in this Second Appeal. The Second Appeal, being devoid of merits, is dismissed.
Order Date :- 13.1.2010 bgs/