Court No. - 34
Case :- SECOND APPEAL No. - 642 of 2021 Appellant :- Ram Das And 3 Others Respondent :- Jamuna Devi (Deceased) And Another Counsel for Appellant :- Triveni Shanker,Ajay Shankar Counsel for Respondent :- Dinesh Chandra Yadav,Ashish Kumar Srivastava
Hon'ble Ali Zamin,J.
Heard learned counsel for the appellants and perused the material available on record.
This is second appeal arising out of judgment and order dated 23.11.2021 passed by Additional District Judge, F.T.C. (First), Chandauli in Civil Appeal No.2 of 2003 (Ram Das and others Vs. Smt. Jamuna Devi and others) and decree dated 16.09.2021 preferred against the judgment dated 18.09.2003 passed by Civil Judge (Senior Division) Chandauli in Case No.135 of 1999 (Smt. Jamuna Devi Vs. Ram Das and others).
Learned counsel for the appellants submits that according to the plaint version, plaintiff purchased Arazi No.290, area 3.63-3/4 acre from Smt. Renuka Devi @ Renuki and Kumari Anjali Devi @ Anju by means of two sale-deeds dated 14.03.1988 and 10.12.1996, respectively. Plot No.290 is a big plot, appellants are licensee of a part of Plot No.290 from its owner and has established Naand Charan and Khunta. P.W.-1, Jamuna Devi has admitted that Ram Das is in possession of his land and his land is situated in Plot No.290. Relief of possession has not been sought by the respondent, therefore, the trial court could not have ignored admission of the P.W.1, Jamuna Devi and held that the suit was not barred by Section 34 of Specific Relief Act. He further submits that vide its order dated 29.08.2002 trial court directed plaintiff to file report after demarcation from the competent court observing that it will be proper to decide the case after filing report of the demarcation by competent court. Trial court without adhering its own order has decided the suit. The order dated 29.08.2002 would have been operated as res-judicata. He also submits that after order dated 29.08.2002, S.D.O. Sadar, Varanasi passed an order on 28.02.2005 that unless land is not partitioned and Khata is separated, part of land cannot be identified. He also submits that by sale-deed dated 09.02.2012 appellants became co-sharer and vide order dated 06.07.2017, this Court held that it can be brought by means of application under Order 41 Rule 27 C.P.C. The appellate court could not have dismissed the application vide order dated 21.04.2017 holding that by accepting the sale- deed dated 09.02.2012 of the disputed land in favour of the appellants shall change the nature of the defence. On the basis of above contention, he submits that trial court was not justified in decreeing the suit and appellate court also in affirming the decree of trial court.
Learned counsel for the respondents submits that the appellants moved an application under Order 41 Rule 27 of the C.P.C., which was rightly rejected and appellants did not challenge the same before this Court. He further submitted that appellants claimed to be a licencee but both court has held that appellants failed to prove possession on the basis of the licence. No substantial question of law has been raised.
It would be clear from the finding on issue no.2 of the trial court, the trial court has observed that plaintiff through SDM has identified the disputed property and prepared a map, paper no.63C from which it is clear that the property is identifiable, in view of which contention of the learned counsel for the appellants is devoid of substance that trial court without adhering its own order has decided the suit and order dated 29.08.2002 would have operated res-judicata.
So far as contention of the learned counsel for the appellants is concerned that P.W.-1, Jamuna Devi has admitted possession of appellants and trial court could not have ignored the admission and held that suit was not barred by Section 34 of Specific Relief Act, trial court and appellate court has held that ownership and possession of the respondents is proved appellants claimed to be licensee but failed to prove it and their possession. In view of concurrent finding of both courts below this contention also has no substance.
Next contention of learned counsel for the appellants that he became co-sharer vide sale-deed dated 09.02.2012 this Court held vide order dated 06.07.2017 to bring the sale-deed on record under Order 41 Rule 27 C.P.C. also bears no substance as suit has been filed in the year 1999 and appellants purchased part of Plot No.290 in the year 2012, therefore, court below has rightly held that accepting the sale-deed dated 09.02.2012 shall change the nature of defence. Further, appellants have not challenged the order of appellate court also passed on application under Order 41 Rule 27 C.P.C.
So far as last contention is concerned that S.D.O. Sadar has passed an order on 28.02.2005 subsequent to order dated 29.08.2002 that without partition of the Plot No.290 share cannot be identified, both courts below has turned concurrent finding regarding ownership and possession of disputed land and in view of the concurrent facts finding and appellants claim themselves to be licensee but could not prove it as well as during pendency of appeal purchase of part of land of the Plot No.290 through sale-deed and finding of appellate court under Order 41 Rule 27 C.P.C., this contention is also devoid of substance and no interference is required on this ground.
In view of the above, no substantial question is involved in the appeal. Accordingly, appeal lacks merit and it is dismissed. Parties shall bear the costs of appeal.
Order Date :- 20.12.2021 Zafar