Court No. - 53
Case :- SECOND APPEAL No. - 976 of 2019 Appellant :- Mohd.Aslam Respondent :- Shabnam And Another Counsel for Appellant :- Santosh Kumar Mishra Counsel for Respondent :- Syed Mohd. Khalid
Hon'ble Jayant Banerji,J.
Heard Shri Santosh Kumar Mishra, learned counsel for the appellant and Shri Syed Wazid Ali, learned counsel holding brief of Shri Syed Mohd. Khalid, learned counsel for the respondents.
This second appeal has been filed against the judgement and decree dated 25.5.2019 and 30.5.2019 respectively passed by the Additional District Judge, Court No. 14, Bareilly whereby the appeal filed by the plaintiff-appellant being Civil Appeal No. 186 of 2017 has been dismissed and the judgement and decree dated 30.11.2017 and 13.12.2017 respectively passed by the Civil Judge (Senior Division), Bareilly in Original Suit No. 599 of 2013 has been confirmed.
The plaintiff-appellant filed a suit for decree of permanent prohibitory injunction for restraining the defendants from causing any damage or demolition over any part of the plaintiff's property as shown in the plaint map and from illegally and forcibly dispossessing or causing interference in the plaintiff's lawful and peaceful possession over the same and marked in the map of the plaint as C,D,E,F. A written statement was filed denying the claim of the plaintiff as raised in the suit. Apart from documentary evidence, the plaintiff-appellant was examined as PW1 and the defendant-respondent no. 2 was examined as DW1. Admittedly, the PW1 in his testimony stated as follows:
"मम यह चचाहतचा हहहूँ ककि ममेररी जगह प्रकतवचादरीगण उसमे छछोड़किर मझमे दमे दहूँद | किचागज ससंख्यचा 23 ग/5 नक्शचा मम पहचचानतचा हहहूँ | नक्शमे मम जछो ललैकटट न , बचाथरूम ल०ल०बरी० दशचार्शायमे गए ह उन्हहीं पर मनमे यह ममुकिदमचा दचायर ककियचा हलै |"
The courts below concluded that this admission of the PW1 shows that he is not in possession of the property in dispute. The trial court, after considering the evidence as well as the testimony of the witnesses and the admission aforesaid made by the PW1 in his testimony observed that the plaintiff's own contention is with regard to the area shown in the plaint map as B,L,L which is not the property for which the suit has been filed. The trial court observed that in view of the denial in the written statement and the testimony of the DW1 that his property is within the property of the plaintiff, observed that in such circumstances it was imperative for the plaintiff to have proved that the property shown with the letters B,L,L is part of his property. The trial court found that no specific and substantial evidence was filed on behalf of the plaintiff to prove that he is entitled to the relief claimed. The suit was accordingly dismissed. In the civil appeal filed by the plaintiff-appellant, the lower Appellate Court held that the sale deed executed in favour of the defendant is admitted. From perusal of the sale deed executed in favour of the defendant, the lower Appellate Court found that the defendants had purchased the property in dispute which was 120 square yards of residential house. On the North and South of the property sold on the map enclosed in the sale deed, the properties of Sohail and Aslam (Aslam being the plaintiff-appellant) was shown. In that map, the breadth of the sold property on both sides was shown as 24.6 and length of both sides was shown as 44. Thus, the lower Appellate Court found that the East and West boundaries of the property in dispute are the same and the North and South boundaries have the same measurement. All the lines shown in the sale deed map are straight and as such, the lower Appellate Court held that the property shown in the plaint map as B,L,L would be towards the property of the defendant. This aspect was also borne out from the report of the Amin. The admission made by the plaintiff-appellant in his testimony was also considered. Thus, the appeal of the plaintiff-appellant was dismissed.
It is contended by the learned counsel for the appellant, with reference to the sale deed that has been enclosed as Annexure No. 4 to the affidavit, that the property in dispute fell in the share of the plaintiff-appellant and the courts below have thus misdirected themselves in recording a finding that the area marked as B,L,L on the plaint map lies in the portion of the defendant-respondent.
The map appended to the sale deed that was executed in favour of the defendant-respondents appears on page 144 of the paper book. The demised property appears to be rectangular in shape with the lines straight. The boundaries on the Eastern and Western sides are identical in length measuring 24 feet 6 ½ inches. The boundaries on the Northern and Southern sides are identical in length and shown as 44 feet 00 inches. The plaint map that has been appended along with the plaint appears on page 84 of the paper book in which property demised by means of the aforesaid sale deed is sought to be shown with the letters E,H,G,F. The plaintiff-appellant claims a decree of permanent prohibitory injunction with regard to the C,D,E,F. However, in the cross-examination, the PW1 claims that the dispute is only with regard to bathroom and the two latrines that have been marked with the letters B,L,L in the plaint map. Admittedly the property existing on the Northern side of the plaintiff- appellant's property is that of the defendant-respondents. The area marked with the letters B,L,L appearing in the plaint map is distinctively projecting into the area of the defendant- respondents which has effect of rendering the property of the defendant-respondents not rectangular. The sale deed being an admitted document, and the admission made by the PW1 as well as the report of the Amin and the findings recorded by the courts below leave no room of doubt that the findings recorded by the courts below are correct and have been correctly concluded. No substantial question of law, including the ones framed in this appeal, exist.
This appeal is, accordingly, dismissed.
Order Date :- 27.9.2019 A. V. Singh (Jayant Banerji, J.)