Jharkhand High Court
Mahamaya Devi & Anr vs Shambhu Yadav & Ors on 27 September, 2011
Equivalent citations: 2012 (4) AIR JHAR R 669, (2013) 2 JCR 96 (JHA)
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.69 of 2011
Mahamaya Devi & Anr. .......... Appellants.
Versus
Shambhu Yadav & Ors. .......... Respondents.
CORAM : HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
For the Appellants : Mr. Ram Pravesh Sharma, Advocate.
For the Respondents: None.
03/27.09.2011: This appeal is against the judgment and decree dated 5th April, 2011 passed by learned District Judge, Sahibganj, whereby he has dismissed Title Appeal No.38 of 2009 and affirmed the judgment and decree of the learned Trial Court passed in Title Suit no.7 of 2006.
2. The plaintiffs are the appellants. They had filed title suit in the court of learned Subordinate Judge, Sahibganj, being Title Suit no.7 of 2006, praying, inter alia, for declaration of right, title and interest over the suit plot and for confirmation of possession or alternatively for recovery of possession, if they are found dispossessed by the defendants. They further prayed for a decree for removal of the structure constructed by the defendants over the suit plot or for demolishing the same through the process of court.
3. The suit land appertains to Jamabandi No.59, Plot no.284, measuring 4 Dhurs of Mauza Pokharia, P.S. Borio (Jirbabari), District Sahibganj.
4. According to the plaintiffs, they acquired the land of Plot no.285 and constructed a residential house in 1986 and have been residing in the same since then. The said plot was purchased by the plaintiffs by an agreement of sale. The land was recorded in the name of the plaintiffs in the municipal record. The defendants purchased Plot no.283 from Tura Dhangar by an agreement of sale dated 7th November, 1987. In between the house of the plaintiffs and the defendants, Plot no.284 belongs to Tura Dhangar. The plaintiffs had difficulty of egress and ingress to and from the residential house, purchased 4 Dhurs of land of Plot no.284 by an agreement of sale dated 7th 2 April, 1995 and came in possession of the same since then. The said land of Plot no.284 is the suit property, which is described in ScheduleB of the plaint. Since the transfer of the land required permission from the competent authority, the said Tura Dhangar had filed a petition dated 20th April, 1996 for that purpose. The same was registered as P.R. Case no.33 of 199697, in the court of Additional Collector, Sahibganj. The suit land has been in possession and ownership of the plaintiffs and the same is being used as their ingress and egress. The defendants have absolutely no right, title and interest over the suit plot, but they had greedy eyes over the said land. In order to encroach upon the said land, the defendants tried to fix a door having opening in the said plot and to put wall on the said land blocking the passage and NIKAS of the plaintiffs on 25th April, 1996. The plaintiffs objected to the same. The dispute between them led to a proceeding under Section 144 Cr.P.C. The said proceeding was converted into a proceeding under Section 145 Cr.P.C. and was registered as T.P. Case no.66 of 2003. The said proceeding was ultimately dropped by order dated 22nd October, 2003. The plaintiffs preferred revision before the Sessions Judge, Sahibganj, being Cr. Revision no.61 of 2003, but the same was also dismissed by order dated 6th October, 2005. The plaintiffs, thereafter, filed the said suit.
5. The Defendant no.2 filed written statement, contesting the suit. It was stated that the plaintiffs have no cause of action and the suit is barred by principle of waiver, acquiescence, estoppel and limitation. There was a space between the plaintiffs' house and defendants' house, which was kept by the defendants for light and air. The plaintiffs by forging an agreement paper have been maliciously claiming the said land on that basis. The defendants denied that the plaintiffs have entered into any agreement regarding the said land. It was further denied that the plaintiff was using the said land as NIKAS. The defendants claimed that the land belongs to them . Their names have been recorded in the Sahibganj municipality, in Holding no.25, Ward no.19. They have been regularly paying municipal 3 tax etc. It was specifically denied that the plaintiffs have any right, title and possession over the suit land. The defendants prayed for dismissing the suit on the said ground.
6. The Defendant no.1 appeared, but he did not file written statement within the prescribed period and as such, he has been debarred from filing the written statement by the learned Trial Court. The Defendant nos.3 and 4 did not appear and the suit proceeded ex parte against them.
7. On the basis of the pleadings of the parties, learned Trial Court framed several issues. The plaintiffs adduced oral and documentary evidences. However, the defendants did not adduce any evidence.
8. Learned Trial Court after a detailed discussion and consideration of the evidences on record found that the plaintiffs could not prove their case by any cogent evidence and failed to establish their right, title and interest over the suit land. Further the plaintiffs could not be able to substantiate that they are in possession over the suit land and as such, there was no occasion for deciding the question whether the defendants have encroached upon the land by playing fraud. Learned Trial Court further found that the suit was not maintainable and the plaintiffs are not entitled to any relief. Learned Trial Court decided almost all issues against the plaintiffs and dismissed the suit.
9. Against the said judgment and decree, the plaintiffs appellants preferred appeal in the court of learned District Judge, Sahibganj, which was registered as Title Appeal no.38 of 2009.
10. Learned Lower Appellate Court heard the parties and considered the facts and evidences on record and recorded its own findings.
11. Learned Lower Appellate Court held that the plaintiffs failed to prove their right, title and interest in respect of the suit land and the alleged encroachment by the defendants and the plaintiffs are not entitled to any relief. Learned Lower Appellate 4 Court, thus, concurred with the findings of facts arrived at by learned Trial Court and dismissed the appeal.
12. In this second appeal, the appellants have assailed the impugned judgment and decree on the ground that the findings were arrived at, ignoring the fact that the defendants failed to adduce any evidence to establish their right, title and interest on the suit land and even if there is no valid document in support of the plaintiffs' title they have acquired possessory title and easementary right and that the evidences adduced by the plaintiffs have not been properly considered by the learned courts below.
13. Learned counsel for the appellants submitted that though the plaintiffsappellants had adduced oral and documentary evidences to prove that the plaintiffs have acquired possessory title and that the suit land is the only passage for egress and ingress of the plaintiffs, the courts below have erroneously dismissed the plaintiffs' suit without properly appreciating the said evidences.
14. Having heard learned counsel for the appellants, I perused the judgments and decrees of the learned courts below. I find that the learned Trial Court has considered the facts and evidences adduced by the plaintiffs in detail and arrived at the conclusion that the plaintiffs failed to prove that they have got right, title, interest or possession over the suit land. Learned Lower Appellate Court has also thoroughly gone into the facts and evidences on record and came to the finding that the plaintiffs have not acquired any right, title and possession over the suit land. I further find that the evidences adduced by the plaintiffs were duly discussed and appreciated by both the courts below.
15. Though the plaintiffsappellants tried to make out a case that they have acquired possessory right or easementary right, the same has not been pleaded in the plaint. This Court cannot travel beyond the pleadings of the parties and any such claim cannot be entertained at the second appellate stage.
16. The two courts of facts have elaborately dealt with the 5 facts, materials and evidences on record and have come to the concurrent findings of facts, which are binding on this Court in second appeal.
17. The ground that the plaintiffs' suit should have been decreed because the defendants did not adduce any evidence is without any substance. It is well established that the plaintiffs have to stand or fall on their own strength and not on the weakness of the defendants' case or evidence.
18. In the instant case, since the plaintiffs have set up a claim of right, title and possession over the suit and they failed to establish the same, learned courts below have rightly held that the plaintiffs are not entitled to the relief prayed for.
19. I find no error or illegality in the impugned judgments and decrees of learned courts below, giving rise to any substantial question of law to be framed and decided by this Court.
20. This appeal is, accordingly, dismissed.
(Narendra Nath Tiwari, J.) Sanjay/AFR