Heard Shri C.B. Yadav, learned Senior Counsel assisted by Shri Niseeth Yadav for the appellant and Shri Apoorva Hazela for the respondents.
This Second Appeal has been preferred by the appellant- defendant against the impugned judgment and order dated 28.10.2009 and decree dated 11.11.2009 passed by Additional District Judge/Special Judge, SC/ST Act, Jhansi in Civil Appeal No.73 of 2007 (Smt. Sunder Bai Yadav Vs. Smt. Kamla Devi and Others) by which he has affirmed the Trial Court's judgment and order dated 13.8.2007 and decree dated 27.8.2007 passed by Additional Civil Judge (S.D.), court no.8, Jhansi in Original Suit No.144 of 2003, filed by the respondents-plaintiffs.
The plaintiffs-respondents had filed an original suit bearing no.144 of 2003 claiming themselves to be the owner of house no.807, 807/1, 808 and 809, new numbers of the aforesaid house are 714, 715 and 716 siutate in Mohalla Gwaltoli, Civi Lines, District Jhansi, seeking eviction of the defendant-appellant and hand over the possession of the disputed portion of the said property measuring 28.8" X 15.2" to the plaintiffs, land owners.
It was pleaded before the courts below that the above property was purchased by ancestors of the plaintiff's i.e. Maha Deo Prasad through a registered sale deed on 19.12.1946 from one Bucha. Since 19.12.1946 Maha Deo Prasad and thereafter his successors Sheo Narayan Paliwal, father of the plaintiff's-respondents had become owner of the aforesaid property except the above disputed portion. The details of the property have been indicated in the body of the plaint. There is mention of some litigation, which remained pending between the land owners and some tenants. Ultimately, the house situate on the above plot numbers came into possession of the defendant-appellant on 10.11.1999. The plaintiffs' father Late Sheo Narayan Paliwal was working in the Indian Army and after his retirement in the year 1990-91, he settled in Jhansi. During pendency of the landlord-tenant dispute, the appellant Smt.Sunder Bai illegally encroached upon, occupied a corner of the land covering an area of 28.8" X 15.2". Later on, the defendant-appellant got a fabricated forged sale deed registered on 21.7.1992 from her own real brother Ram Singh Yadav, who was Deputy Mayor of City Jhansi. As such, he exercised his authority, using his influence to get the sale deed registered with the connivance of Ram Singh Yadav. The defendant- appellant also raised some construction over the above mentioned disputed portion of the land owned by the plaintiffs. Two shops and some construction were raised by her illegally. It was alleged that her brother Ram Singh Yadav was a leader of Samajwadi Party and being Deputy Mayor of Jhansi City, Smt. Sunder Bai illegally got the map sanctioned from the Municipal/Development Authorities. It was further highlighted before the court below that when execution proceedings bearing no.81 of 1999 were going on before the Executing Court, the plaintiffs-respondents had sought possession of the aforesaid portion of the plot, which was under illegal occupation of appellant Smt. Sunder Bai Yadav. The Executing Court had held that the land was of the plaintiffs, however, they were required to file a suit and the application was disposed of on 31.10.2000. Due to this reason, a separate suit was filed by the plaintiffs-respondents. The suit was contested by the appellant-defendant denying the ownership, entitlement of the plaintiffs-respondents on the plot in dispute. The appellant Smt. Sunder Bai Yadav had challenged that Bucha was not the owner of the property nor the land was sold to Mahadeo Prasad grandfather of the plaintiffs-respondents.
Much stress was laid that defendant-appellant had purchased the house from Ram Singh Yadav. She was legally occupied the aforementioned piece of land. She had got the map sanctioned from Jhansi Development Authority and raised construction thereafter in the year 1992. She has a voter I.D. and electricity connection on the premises. When the construction was raised and the property was in occupation, no challenge was made by the plaintiffs-respondents. The whole case was fabricated against the defendant-appellant.
The Trial Court had framed seven issues covering the dispute. The plaintiffs had produced the oral and documentary evidence and similarly the defendant-appellant has also produced defence witnesses and documents. Even in this appeal also, Shri C.B. Yadav, learned counsel for the appellant is reiterating the submissions put- forth in the lower Appellate Court and the Trial Court. According to him, the appellant has always remained in possession, construction was raised after obtaining permission from Jhansi Development Authority and the property was purchased through a duly registered sale deed. In the year 1992, no objection was raised at the time of sanctioning of map and at the time of construction. The suit itself was liable to be dismissed under Order 7 Rule 11 of C.P.C. The actual area, plot was not identified by the plaintiffs. The plaint was absolutely barred by law of Estoppels and Acquiescence. This legal and factual aspect have been completely ignored by the courts below.
Three substantial questions of law were suggested by the learned counsel for the appellant, which are quoted below:-
(A) Whether once the plaintiffs-respondents have allowed the defendant-appellant to construct the building and did not raise any objection, then the relief of possession of open land cannot be granted without claiming demolition of standing structure, but in the present case, just in order to bring the aforesaid suit within period of limitation, the plaintiffs-respondents knowingly and deliberately did not plead any pray for demolition of building. Period of limitation for demolition of building is only for 3 years and period for possession of open land is 12 years, therefore, the plaintiffs- respondents knowingly and deliberately did not plead and pray for demolition of building, therefore, both the courts below have committed concurrent error in law and facts? (B) Whether admittedly in the present case according to plaint the appellant-defendant accomplished the possession over the land in dispute when they started construction in the year 1992 and that too after getting the map sanctioned from the Nagar Palika Parishad, therefore, the right to sue accrued to the plaintiffs-respondents on their predecessors in interest in year 1992, but the suit has been filed in the year 2003 after the date of accrued of cause of action. No doubt the suit for possession was filed after 11 years from the date of possession, but it is not simple suit of possession of open land in dispute, rather it accompanied by demolition of building constructed 11 years ago from the date of suit, therefore, on the date alleged in paragraph no.8 of the plaint, neither cause of action arose to the plaintiffs- respondents nor according to allegation of plaint cause of action has been disclosed, thus, the suit as framed and filed was liable to be dismissed under Order 7 Rule 11 of the Code of Civil Procedure and this fact has not been dealt with either by trial court or by appellate court, and as such, both the courts below have committed concurrent and apparent error in law?
(C) Whether the plaintiffs' case as contained in the plaint was absolutely barred by Estoppels and Acquiescence as the plaintiffs themselves allowed the building to be constructed on the plot in dispute and that too after getting the map sanctioned by the appellant-defendant, and plaintiffs- respondents did not raise any objection thereto and after 11 years the plaintiffs-respondents filed the suit for possession of open land and knowingly and deliberately did not plead and pray for demolition of standing structure of the building, in which entire family of the appellant-defendant resides. It appears that the house was constructed in year 1992 as it has been admitted by the plaintiffs-respondents in paragraph no.6 of the plaint, therefore, the cause of action as referred in the plaint in year of 2000 is absolutely not maintainable and is not sustainable, and therefore, the suit as framed and filed was barred by limitation?
Both the courts below had taken into account the oral and documentary evidence put-forth by the parties. There existed a registered sale deed on 19.12.1946, Paper No.49A, by which plaintiffs' grandfather Maha Deo Prasad had purchased the property from one Bucha. The details of the properties, its boundaries, location, measurement etc. were indicated in the sale deed, which were the part of the record. The Trial Court has put the site plan and details by putting two maps in the judgment. The sale deed dated 19.12.1946 was found to be registered sale deed and the Vendor Bucha after taking sale consideration had handed over possession to Late Mahadeo Prasad. The court has relied on Section 19 of the Indian Evidence Act, 1982 to record a finding of fact that the 60 years old sale deed, which was registered on 19.12.1946 in respect of the property could be treated to be legal and void document, by which the ownership, title in the property in dispute was transferred to Late Mahadeo Prasad, grandfather of the plaintiffs-respondents and father of Sheo Narayan Paliwal, retired military personnel. Smt. Sunder Bai was a stranger to the transaction and the property. She had no right to challenge the sale deed dated 19.12.1946 or the events which took place thereafter and the litigation pending between landlords and their tenants. She has failed to establish her legal right to occupy the land, raised construction over the disputed portion of the land, which was sold to the plaintiffs' grandfather on 19.12.1946. A dispute was raised before the Prescribed Authority under Section 21 of the Rent Control Act, paper no.9Ga. The said Authority had taken into account that the house, land in dispute was purchased by late Mahadeo Prasad from Bucha and after his death, the property was devolved on Sheo Narayn Paliwal and thereafter on his widow, Smt. Kamla Devi and sons Anil Kumar Paliwal and Arvind Kumar Paliwal. The witnesses had proved the documents and verified the contents of the plaint and possession. The courts below have recorded a finding of fact that Smt. Sunder Bai was born in the year 1968 whereas the sale-deed and rent-deed were prepared on 19.12.1946. This finding cannot be demolished at all. Now at the stage of second appeal in the Hon'ble High Court, the findings recorded by the Prescribed Authority were also binding on the parties.
The courts below have dealt with the sale deed alleged to have been executed in favour of Smt. Sunder Bai by her own brother Ram Singh Yadav on 21.7.1992 for consideration of Rs.26,000/-. The court has given a map, site-plan of the said property to record a finding against the defendant-appellant. The detail findings of fact have been recorded that Ram Singh Yadav was not the owner of the property, which was sold to his sister Smt. Sunder Bai Yadav on 21.7.1992. He was not empowered to sell the property belonging to late Mahadeo Prasad, his son Sheo Narayan Paliwal and thereafter his widow Smt. Kamla Devi and sons Anil Kumar Paliwal and Arvind Kumar Paliwal. Both the courts below have declined to accept the plea taken by the defendant that the property in which construction was raised, was their ancestral land. The courts below have also taken note of the pedigree of family of Smt. Sunder Bai Yadav . The courts below have found contradiction in the statements put-forth by the defendant in her written statement and during course of trial. The defendant could not even indicate as to how the alleged shares were divided amongst the alleged family members. Even the property could not be identified by her witnesses. The courts below by writing detail findings had come to the conclusion that the defendant pleas were unfounded. There was no material on record to show that the appellant has any right to remain on the property, illegally occupied by him. The sale deed dated 21.7.1992 was found to be fabricated, manufactured document and usurp property of the plaintiffs- respondents. So far as sanction of map is concerned, both the courts below have taken note of the fact that the Secretary Jhansi Development Authority had put note on the map that map was not connected in any manner with declaration of title. If a person raising construction on some government land, Nazul land, Nagar Palika land, Gaon Samaj land, it would be the responsibility of the persons, raising construction on the basis of the sanctioned map. As far as the telephone bill, ration card, electricity connection are concerned, it shows that the defendant-appellant is occupying the disputed portion of the property but with right. However, as far as the title and ownership over the land in dispute is concerned, the court below had declined to accept the version of the defendant Smt. Sunder Bai Yadav. The courts below have recorded a finding of fact on the basis of oral and documentary evidence that she was illegally occupying the property and her possession was found to be illegal and unauthorized. The plaintiffs-respondents were able to prove their case that they were owners, title-holders over the entire land, which was purchased by their grandfather late Shri Mahadeo Prasad. All the issues were decided in favour of the plaintiffs-respondents. Both the courts below have recorded that the plaintiffs-respondents were entitled for possession over the land in dispute. As far as material used for raising illegal and unauthorized construction is concerned, the defendant-appellant Smt. Sunder Bai Yadav, appellant herein is free to take away the same. Both the courts below have taken note that the appellant had shown herself to be in possession of the disputed property since 1992 but at the same time proceedings for eviction of tenant were going on between landlord and tenant. The portion occupied by the defendant-appellant was part of the same house and open land, which was under legal proceedings before the Prescribed Authority under Section 21 of the Rent Control Act. The suit no.81 of 1999 was allowed in favour of the landlord. They were entitled for peaceful possession over the house and entire land including open land belonging to the defendant-appellant. From this angle also, both the courts below have seen the litigation and found the circumstances favouring the plaintiffs-respondents.
In view of above discussions, it is amply clear that the defendant-appellant has failed to make out any case for interference under Section 100 of C.P.C. Both the courts below have recorded finding of fact to come to the conclusion that Smt. Sunder Bai Yadav was unauthorisedly, illegally occupying the portion of the property owned by the plaintiffs-respondents. The plaintiffs-respondents have established their case before the courts below on the basis of oral and documentary evidence. Sale deed executed on 19.12.1946, the judgment of the Prescribed Authority under Rent Control Act and other material documents, which prove the case of the plaintiffs- respondents before the courts below. The appellant has failed to substantiate her theory, in the circumstances of the case where she had purchased the land from her own brother Ram Singh Yadav, who is Deputy Mayor of Jhansi, having no title or relation with the land. This act could be defined as a land-grabbing. The land grabber has rightly been ousted from the property by the courts below.
In view of above, it is clear that both the courts below have recorded concurrent findings of fact based on oral and documentary evidence and other materials available on record. No substantial question of law arises to be considered in this Second Appeal to persuade this Court to deal with the matter. No ingredients or elements as required to be attracted under Section 100 of the Code of Civil Procedure are available in this case. This court has also scrutinized this case in the light of the law laid down by the Hon'ble Apex Court in the judgments reported in AIR 2008 SC 1749, Kashmir Singh Vs. Harnam Singh and another, AIR 1999 SC 2213, Kondiba Dagadu Kadam Vs. Savitribhai Sopan Gujar and Others and (1995) 6 SCC 213, Kashibai W/O Lachiram and others and does not find any ingredients as required under Section 100 of the Code of Civil Procedure are attracted in the present case.
In view of the above, no substantial question of law arises to be considered. Accordingly, the Second Appeal is dismissed.
Dt/19.1.2010 Pks/