Heard learned counsel for the appellant.
The instant second appeal has been preferred against the judgment and decree dated 13.10.2020 passed in Regular Civil Appeal No.34/2018, whereby th judgment and decree passed by the trial court dated 09.04.2018 has been affirmed, as a result, the suit of the plaintiff-respondent No.1 bearing R.S.No.255/1999 has been decreed.
The submission of the learned counsel for the appellant while pressing the aforesaid second appeal is primarily two fold.
Firstly, that the plaintiff had filed a suit for permanent injunction claiming that she is the owner of the property in question and the defendant be restrained from interfering in the possession. In view of the aforesaid, it was incumbent upon the plaintiff to prove her title as well as possession and the plaintiff could not succeed on the weakness of the plea of the defendant.
The other submission is that the plaintiff herself in her cross-examination had admitted the possession of the defendant. Thus, this aspect having been ignored by the two courts below give rise to substantial question of law.
The Court has considered the aforesaid submissions and has also perused the material available on record.
The plaintiff-respondent No.1 had instituted a suit for permanent injunction, registered as R.S. No.255/1999. She along with the plaint while describing the property had also referred to the property in dispute by letter A, B, C, D. She pleaded that the land in question is part of the house, which is ancestral and belonged to her father, even on the aforesaid pleadings she claimed her title as well as possession.
The defendant-appellant had contested the above suit by filing written statement wherein he had taken a plea that the property in question did not belong to the plaintiff and had also raised a plea of adverse possession since more than 30 years.
On the basis of the pleadings of the parties, the trial court had framed as many as six issues. However, for the controversy in question, issues no.1 and 3 were relevant.
The first issue related to the fact whether the plaintiff is the owner in possession in the property in dispute and Issue No.3 related to the plea raised by the defendant regarding having perfected his rights of adverse possession.
The parties led their respective evidences and on the basis of the oral evidence led by the parties, the trial court referring to the witnesses of the defendant wherein they had stated that the property in question is part of the house of Madai (father of the plaintiff). The witnesses also stated that the disputed land is in possession of the plaintiff and the house of the defendant was about 20 meters away from the disputed land.
Considering the aforesaid evidences, the trial court returned a finding of fact that the plaintiff is the owner in possession and accordingly decreed the suit.
The defendant-appellant preferred a Regular Civil Appeal No.34/2018, which was heard by the Fourth Additional District Judge / Special Judge (E.C. Act), Raebareli, who also considering the various pleas as well as framing points of determination has affirmed the judgment and decree passed by the trial court. The first appellate Court also relied upon the statements of the defendant's witnesses, who have stated that the plaintiff was in possession and, therefore, the findings of the trial court had been affirmed.
The submission of the learned counsel for the appellant is that the plaintiff in her own statement had admitted the possession of the disputed land is not clearly borne out from the record and isolated statement is not enough to shut out the creditability and this aspect of the matter has not been considered by the two courts below.
From the material on record, this Court finds that both the Courts upon considering the statement of the witnesses have recorded a finding that the plaintiff was the owner and also in possession of the property in question. These are findings of fact that based on evidence on record. Learned counsel for the appellant could not point out any perversity in the findings recorded. The issue of title and possession both are question of fact decided concurrent by the two courts below.
Considering the aforesaid aspect of the matter, this Court is satisfied that no substantial question of law arise in this second appeal. This Court is fortified in view of the decision of the Hon'ble Apex Court in the case reported in 2020 SCC Online SC 676. Accordingly, the second appeal is devoid of merits and is dismissed at the admission stage. The judgment and decree passed by the trial court dated 09.04.2018 and the judgment and decree dated 13.10.2020 are affirmed.
Order Date :- 21.1.2021 Rakesh/-