Reserved on : 10.05.2018 Delivered on: 31.05.2018 Case :- SECOND APPEAL No. - 1329 of 2007 Appellant :- Nagar Panchayat Sumerpur Thru' Its Chairman Respondent :- Yagdutt Counsel for Appellant :- Sant Ram Sharma,C.S. Agnihotri Counsel for Respondent :- V.S. Parmar
Hon'ble Siddharth,J.
Heard Sri Sant Ram Sharma, learned counsel for the appellant and Sri V. S. Parmar, learned counsel for the respondent.
This is defendant’s Second Appeal against the Judgment and Decree dated 12.09.2007, passed by Sri Chandra Pal, Special Judge (Dacaity Affected Area) Hamirpur in Civil Appeal No.32/2005, allowing the appeal of the plaintiff and decreeing the Original Suit No.144 of 2001, dismissed by Sri Satya Nand Upadhyaya, Civil Judge ( Junior Division), Hamirpur by the Judgment and Decree dated 22.03.2005.
The plaintiff instituted the suit, praying for a decree of permanent injunction and for demolition of urinal constructed by defendant during pendency of suit.
The plaintiff’s case was that disputed place Aa, Ba, Sa, Da, mentioned in the plaint is situated in Qasba Sumerpur, Pargana Sumerpur, Tehsil and District Hamirpur; that this land was owned by grand father of plaintiff and he has become owner in possession thereof on the basis of will executed by his grandfather; that there is a well situated over the land in dispute and defendant has constructed a urinal over the same without his permission; that urinal causes lot of bad smell and filth and despite repeated requests and assurance by the defendant, it has not been removed; that on 31.05.2001, defendant came on the spot with its gang and demolished the urinal and started digging land for laying foundation of a shop; that on resistance by plaintiff, they went back but are threatening to construct shop over the same. By amendment it was stated in the plaint that during pendency of suit, defendant has again constructed urinal over land in dispute and hence the suit.
Defendant filed its written statement, denying plaint allegations and denied ownership of land in dispute by grandfather of plaintiff or by plaintiff himself; that it was stated that disputed land is a public place wherein old well and urinal have been constructed; that urinal belongs to town area for public convenience and has been re-constructed after demolition on public demand; that plaintiff wants to take illegal possession over public land and his father Devi Dayal has opened a door towards south of the urinal for taking possession of public land; that on 12.06.2001 a notice was given to his father against which he filed an appeal before Chief Judicial Magistrate, which was dismissed on 19.07.2002; the shop of plaintiff is situated towards south of the urinal and father of plaintiff himself gave an application dated 25.10.1996 for reconstruction of urinal; that urinal has been constructed on public place for convenience of public; that plaintiff is not in possession over the suit land and his suit is barred by Section-34 of Specific Relief Act and deserves to be dismissed.
Learned Trial Court framed the following issues in suit on the basis of pleadings of parties,
(1). Whether plaintiff is owner in possession over land shown by letters Aa, Ba, Sa, Da in the plaint map and entitled to permanent injunction?
(2). Whether suit of plaintiff is barred by principles of estoppel and acquiesance?
(3). Whether suit of plaintiff is barred by Section-34 of Specific Relief Act?
(4). Whether suit is under valued and court fees paid is insufficient?
(5). To what relief is plaintiff entitled?
(6). Whether defendant has constructed urinal over disputed land Aa, Ba, Sa, Da, during pendency of the suit and plaintiff is entitled to get the same removed?
Trial Court decided issue nos.1 and 6 together holding that plaintiff has failed to prove his ownership and possession over land in dispute and that defendant has constructed urinal during pendency of suit. It is clear from evidence on record that well situated thereon is public well and disputed urinal was constructed 8-10 years ago by plaintiff for public convenience and since it had become dilapidated, it has been reconstructed for public demand. Issue nos. 2, 3 and 4 were decided in favour of plaintiff and issue no.5 was decided holding that plaintiff is not entitled to any relief and his suit was dismissed.
Plaintiff preferred Civil Appeal No.32 of 2005 before lower appellate court, which did not framed any point of determination but dealt with the judgment of the trial court issue wise and reversed finding of trial court on issue nos. 1 and 6 and held that Nagar Panchayat failed to prove by leading any documentary evidence to prove ownership of disputed land. Plaintiff is owner of land and well situated thereon. Situation of urinal near well will pollute water of well and therefore Judgment of the trial court is illegal. Regarding findings on issue nos. 2,3 and 4 nothing was stated by the lower appellate court. Issue no.4 was decided holding that the suit of plaintiff deserved to be decreed and lower appellate court allowed appeal of the plaintiff and the decreed his suit.
Defendants have filed this second appeal, praying for setting aside Judgment and Decree passed by lower appellate court. Since filing of appeal, on account of objection from other side, it was not admitted and records of courts below were summoned.
At the time of hearing of appeal under Order-41 Rule-11 C.P.C., Counsel for parties agreed that following substantial question of law arises for determination, “ Whether plaintiff discharged the burden of proof in support of his title, possession and ownership over land in dispute”.
Counsel for the parties agreed that they are prepared to argue this appeal and do not need for time for preparing the case on substantial question of law since they were fully aware of the issue involved in this case.
Learned Counsel for appellant has argued that burden of proof of title, ownership and possession over suit property was upon plaintiff. Plaintiff was required to adduce sufficient evidence to discharge the onus on him irrespective of the question, whether defendant has proved its case or not. Even if title set up by defendant is found against it, in the absence of establishment of plaintiff’s own title, he can not be granted any relief.
Lower Appellate Court instead of examining whether plaintiff has succeeded in establishing his title over land in dispute went on to examine weaknesses of defendant’s title and decreed suit of plaintiff without taking note of fact that plaintiff had not proved his title at all.
He has relied upon paragraph no.22 of the judgment of Apex Court in the case of Union of India and others, Vs. Vasavi Co-Operative Housing Society Limited and others, (2014) 2 SCC 269; paragraph nos.3 and 26 of the Apex Court Judgment in the case of SMMKK Thankgal Vs. Badagara Jamayath Palli Dharas Committee, 2004 (7) SCC 708; paragraph nos. 8 and 15 of Judgment of Gujrat High Court in the case of State of Gujrat Vs. Mali Ranchhod Kheta, 1995 Law Suit (Guj) 427 and paragraph no.4 of Privy Counsil's Judgment in the case of Raj Kumar Jagannath Prasad Singh Vs. Syed Abdullah and others, 2018 Law Suit (PC) 3, in support of his arguments.
Learned Counsel for the respondent has argued that lower appellate court has rightly recorded the findings in favour of plaintiff on the ground that plaintiff established from his oral evidence that defendant is not the owner of suit property. Even otherwise Nagar Panchayat is only custodian of the land and it is owned by the State Government.
After considering the rival submissions, it is clear that findings of trial court have not been considered and reversed by lower appellate court before decreeing suit of the plaintiff. The father of the plaintiff had sent a letter dated 25.10.1996 to the Nagar Panchayat, praying for reconstruction of demolished urinal and trial court recorded finding on its basis that he was not owner of land whereon urinal was constructed. This finding was in the nature of estoppel and acquiesance against the plaintiff. Defendant brought on record the sanctioned map of house of plaintiff wherein no construction was found towards south of his house, whereon disputed urinal and well are situated. Learned trial court recorded finding that land in dispute does not belongs to plaintiff. Thereafter, it has considered the documentary evidence regarding the applications of shopkeepers and members of the public given to defendant for constructing urinal again for public convenience and the orders passed by the Executive Officer and Chairman for reconstruction of the urinal were considered by trial court and finding was record that the same belongs to defendant and is not situated over the disputed land.
Lower Appellate Court has not considered these findings of trial court and has held that situation of urinal is causing nuisance for plaintiff and polluting the well without recording finding whether well is being used by plaintiff or not. No finding has been recorded whether well is being used at all whether by public or plaintiff.
In view of the above discussions it is clear that plaintiff failed to discharge burden of proof of proving his title over land in dispute but lower appellate court has illegally set aside the decree of dismissal of suit of plaintiff without meeting findings of trial court and has recorded its own conclusions without referring to findings of trial court and considering the fact whether plaintiff was able to prove his title, ownership and possession over the land in dispute. Substantial question of law framed in this appeal is answered to the effect that plaintiff failed to discharge burden of proof of ownership, possession and title over land in dispute. The judgment of lower appellate court is not in accordance with law and is hereby set aside.
This Second Appeal is allowed with costs.
Order Date :- 31.05.2018 SS