Allahabad High Court
Chet Singh And Others vs Shashi Shankar Pathak And Another on 3 December, 1992
Equivalent citations: AIR1993ALL168, AIR 1993 ALLAHABAD 168, 1993 ALL. L. J. 545, 1993 ALL CJ 29, 1993 (1) ALL WC 574
JUDGMENT
1. This is defendant's second appeal against the judgment and decree dated 29-11-1975 of the then IVth Additional District Judge Varanasi dismissing the 1st appeal, and confirming the judgment and decree of the trial court whereby the plaintiffs suit for possession was decreed. The suit was filed by late plaintiff Chandra Shekhar Shastri whose legal representatives have now been brought on record, against the defendants with allegations that he had purchased O-16 decimals area out of plot No. 29, village Khajuri Pargana Shivpur District Varanasi along with a room situate therein by means of a sale deed dated 7-2-1966 executed by one Behari s/o Mangroo. The area of plot No. 29 is 19 decimals. It was originally recorded as old Banjer of the Zamindar and is now in the shape of Abadi within Municipal limits of Varanasi. In a portion of this plot one Ghissu s/o Darshan had constructed Shiwala and one Kashi a pucca well. The well does not stand now. In a portion of this plot there is a room constructed by Mangroo s/o Ghissu. The said Mangroo has been in adverse possession over this plot since quite some time and perfected title as a tenant. After his death his son Behari inherited the same and remained in possession. Kashi referred to above was not the grand father of Mangroo, although a statement to that effect was made by Mangroo in the revenue court to save himself from ejectment in a suit under S. 180 U.P. Tenancy Act filed by the Zamindar. The defendants who have no concern with the family of Mangroo or Behari unauthorisedly interfered with the plaintiffs possession hence proceedings under S. 145, Cr. P.C. were started in which the Magistrate in a summary manner held the defendants to be in possession and released the property in their favour. Accordingly it has given rise to the suit for ejectment and damages.
2. The defendants in their written statement denied the contentions of the plaintiff and pleaded that the defendants and Mangroo hailed from a common ancestor as per following pedigree:
Kashi | Darshan Ghissu
------------------------------------------------------------------
| Sukkhoo |
Mangroo | Sita Ram
Behari ------------------------------------- Kaloo
| |
Ram Nath Brij Lal
He pleaded that plot No. 29 is the ancestral property of the Behari and the defendants 1 and 2 Ram Nath and Brij Lal, since the time of common ancestor Kashi. There was a well at the time of Kashi in this place which by lapse of time was filled up and the defendant No. I constructed a room on its site. The said room had not been constructed by Behari, a temple constructed by Ghissu also exists in this plot. Mangroo being eldest amongst his brothers, his name was recorded in representative capacity in the revenue papers. Mangroo, Behari, Sita Ram and Kalloo mentioned in the aforesaid pedigree abandoned their residence and properly in village Khajuri and thereafter defendants alone are in possession over the property in suit. The sale deed set up by the plaintiff is void and illegal as it has not been executed by Behari and was not acted upon. In any case Behari had no right exclusively over the said properties. The possession of the defendants being lawful they are not liable to be ejected. The suit is barred by limitation and is not cognisable by the Civil Courts.
3. The trial court came to the conclusion that the property in suit was the exclusive properly of Mangroo whose name alone was recorded over the same in the revenue papers. The defendants 'contention that this plot is their ancestral property is not correct. Behari, the son of Mangroo inherited this property after his father's death and transferred the same by sale deed dated 7-2-1966 in favour of the plaintiff. The plot in question having acquired the character of abadi since quite long time, the suit in respect of the same is cognizable by Civil Courts, it is not barred by limitation and defendants 1 and 3 along with their licensee, the defendant No. 2 Mahesh, are liable to be evicted. He accordingly decreed the suit.
4. In appeal the lower appellate court held that barring the fact of Kashi, being the ultimate common ancestor of Mangroo and defendant Nos. 1 and 3, rest of the pedigree set up in the written statement is fully established. There is however, nothing to show that the plot in question belonged to, or was acquired by, the common ancestor Darshan or Ghissu. It is Mangroo who alone was recorded and was the tenant of the plot in question. The room in dispute was constructed by Mangroo. He and Behari did not abandon village Khajuri or the property in dispute and the sale deed in favour of the plaintiff was validity executed by Behari, on these findings the decree of the trial court was affirmed.
5. It has been contended on behalf of the defendant appellants that the conclusions and findings of the two courts below are unsustainable and liable to interference, in so far as these are against the weight of evidence on record and in arriving at the same, the courts below ignored the material evidence on record indicating Kashi to be the common ancestor of defendants and Mangroo, the plot in question being the ancestral property since the time of Kashi and there being no ouster of the defendants. The contention of the learned counsel appearing on behalf of respondents on the other hand is that the findings recorded by the lower appellate court being finding of fact is binding and is not open to challenge in this appeal. The evidence on record clearly establishes that the plot in question has never been the property of any common ancestor rather Mangroo perfected his title to the same by adverse possession and after his death his son Behari inherited the same and ultimately transferred to the plaintiff.
6. According to the law laid down by Supreme Court in Hira Lal and another v. Gajjan, AIR 1990 SC 723, when the 1st appellate court discarded the evidence as inadmissible and the High Court is satisfied that the evidence was admissible that may introduce an error or defect in procedure. So also in a case where the court below ignored the weight of evidence and allowed the judgment to be influenced by inconsequential matters, the High Court would be justified in re-assessing the evidence and coming to its own independent decision.
7. In the instant case, the contention of the defendant appellants precisely is that the lower courts have altogether ignored the weight of evidence on record. As stated above the plaintiffs filed the suit on the premise that the defendants were total strangers having nothing to do with the family or pedigree of Behari and Mangroo. This however, was found not true by the Lower Appellate Court, which found the defendant Nos. 1 and 3 as well as Behari to hail from a common great grand father Darshan. On record there also was an unequivocal admission of Mangroo made in his deposition in revenue court in the case under S. 180, U.P. Tenancy Act, to the effect that Kashi was his great grand father. The attempt of the plaintiff-respondents to explain this admission of Mangroo as incorrect is hardly credible, in so far as it could not be presumed on mere suggestions that Mangroo stated Kashi to be his great grand father simply to save himself from ejectment. As far as mention of the name of Uttim as father of Darshan in an earlier judgment Ex. 11 on the trial court record is concerned, the same does not necessarily run counter to the defendant's theory because there is nothing to show that Kashi had no other name.
8. The contention of the defendant-appellant that plot in suit has been their ancestral property, is corroborated by the extract of Khasra of 1291 F. recording the plot in question as old Banjar containing a Shivala belonging to Ghissu s/o Darshan and a well constructed by, and in possession of Kashi.
9. The learned appellate court made contradictory observations in this regard in so far as at one place it referred to the entries in this Khasra of 1291 F. and at another place observed that the defendants have not at all filed any revenue papers to show the names of any of the ancestors recorded over this plot. The entry in the Khatauni for 1372 F. recording the name of Mangroo and after him Behari, could not have the effect of negativing this entry of 1291 F, for the reason that it is the case of plaintiffs themselves that the plot No. 29 has acquired the character of Abadi since before 1944 i.e. much before the date of vesting under U.P.Z.A. & L.R, Act. Consequently revenue entries of the subsequent years will have no bearing on the question of possession or title.
10. The only ground upon which the sole title is claimed of Mangroo and thereafter Behari, the transferer of the plaintiffs, is their adverse possession over this plot. However, once it is held that Sukhoo the father of the defendant Nos. 1 and 3, and Mangroo the father of Behari, hailed from a common ancestor Kashi, the presumption would be that the plot in question devolved upon both the branches and not on the branch of Mangroo alone. Amongst co-sharers the inference of ouster cannot be lightly drawn, and the possession of one-co-sharer will enure for that of another unless such ouster is pleaded and proved by specific evidence. As regards the filing of the suit under S. 180 U.P. Tenancy Act by the Zamindar against Mangroo alone, it would be found that it has been sufficiently explained by the defendants by stating that Mangroo being the eldest, his name was recorded in the papers. Consequently the suit by the Zamindar was filed only against him. In any case, the defendants not being party to the said suit and there being no admission regarding exclusive title of Mangroo, the plaintiffs cannot derive any support for establishing exclusive title of Mangroo or Behari over this plot.
11. No doubt in a suit for ejectment of one Ram Narain from a portion of about one Biswa of the plot in suit filed by the defendant No. 1, by means of a compromise, the ownership of Ram Narain was upheld, the same cannot be interpreted as an admission of title of Behari over the entire area of plot No. 29. The effect of the compromise would only be that the right of Ram Narain will be effective against the half share of Behari in this plot.
11 A. The above position emerging from the pedigree, the documentary evidence and the permissible inference, go to lend credibility also to the oral evidence of D. Ws. 1 and 2 led by the defendant-appellants, to the effect that all the sons and grand sons of Ghissu in the pedigree have been in possession over the disputed plot of land as co-owners. Now only two of the branches, one represented by Behari, and the other by defendants No. 1 and 3, surviving their share in this plot would be 1/2 each.
12. As regards the room situated in a portion of the land in suit, of course the claim of the defendant-appellants to have constructed the same has been negatived by the courts below, on the basis of the evidence on record, as such the same is to be treated as exclusive property of Behari built in the joint land. The consequence thereof, however, would be that transfer of the said room in favour of the plaintiff by Behari would enure and will be liable to be adjusted in the event of partition towards the half share of Behari's branch, acquired by the plaintiffs.
13. As held by the two courts below the sale deed dated 7-2-1966 has been executed by Behari and not any imposter. The plaintiff thus would acquire title not over the 16 decimals area as sought to be transferred rather only over one half share in the same, with of course the room standing in the said land. The plea of the defendant's regarding Behari having abandoned the village or this property, having been negatived, there is no reason to hold that joint possession over the land in dispute, with exclusive possession over the room, did not pass to the plaintiffs.
14. There being no evidence of ouster of the plaintiffs or their predecessor in title, and the suit having been filed within limitation, they are entitled to a decree for joint possession over the 16 decimals area in the plot in question and exclusive possession over the room situated therein, but not to exclusive possession over the entire area, in suit. The courts below were not justified in decreeing the suit in toto. The appeal deserves to be partly allowed.
15. The appeal is partly allowed. The judgment and decree of the two courts below is modified to the extent that, the suit is decreed for joint possession of plaintiffs over the 16 decimals area of the plot No. 29 in suit, and exclusive possession over the room situated therein, but is dismissed in regard to rest of the relief.
16. Costs are made easy throughout.
17. Appeal partly allowed.