Karnataka High Court
Sri Madappa S/O Late Marajogi Haladappa vs Sri V S R Holla S/O V S Holla on 20 September, 2012
Author: H.S.Kempanna
Bench: H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 20TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR. JUSTICE H.S.KEMPANNA
R.S.A.NO 1179 OF 2006
BETWEEN
SRI MADAPPA,
S/O LATE MARAJOGI HALADAPPA
MAJOR, R/O SOPPINAKERE
HONNALI TALUK, DAVANAGERE
DISTRICT - 577 217 . .. APPELLANT
(BY SRI P.M. SIDDAMALLAPPA, ADV.,
FOR MYLARAIAH ASSOCIATES)
AND
SRI V.S.R HOLLA S/O V S HOLLA,
R/O HONNALI,
DAVANAGERE DISTRICT - 577 217. ... RESPONDENT
(BY SRI R GOPAL, ADV.)
THIS RSA FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED: 19.1.2006 PASSED IN
RA.NO.229/2002 (OLD NO. 98/2001) ON THE FILE OF THE
CIVIL JUDGE, (SR.DN.), HARIHAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED:21.4.2001 PASSED IN OS.NO. 37/1991 ON THE
FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, HONNALI.
THIS REGULAR SECOND APPEAL COMING ON FOR
FINAL HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
2
JUDGMENT
This is a defendant's appeal directed against the concurrent findings of the courts below which have decreed the suit of the plaintiff filed for declaration and injunction.
2. For the purpose of convenience the parties in this appeal would be referred to by their rankings as they are arrayed in the suit before the trial Court.
3. The plaintiff instituted the suit against the defendant seeking the relief of declaration and permanent injunction in respect of the suit schedule property.
4. The suit schedule property is a land measuring 1 acre 28 guntas situated in S.No.54/3 at old Honnali village morefully described in the schedule appended to the plaint (herein after referred to as "suit property" for short).
5. It is the case of the plaintiff that he is the owner in possession of the suit schedule property. He purchased the suit property from H.Shabbir Ahmed, 3 H.Ashak Ahmed, Smt.Noorunnisa, Smt.Khathmunnisa, Parveez Ahmed & Gulzar Ahmed under the sale deed dated 6.8.1984. It is also his case that apart from the suit schedule property he had also purchased 1 acre 8½ guntas of land in S.No.55/1 and an extent of 7 acres of land in S.No.61/3 of old Honnali Village under the very same sale deed dated 6.8.1984. Prior to the said sale in the year 1979 he is entered into an agreement to purchase the schedule land and the other lands from his vendors as aforesaid. Ever since the date of agreement to sell i.e. 1979, he is put in possession of the suit schedule property and as such he is the owner in possession of the suit schedule property. After he purchased the suit schedule property he filed an application to the revenue authorities to enter his name in the revenue records, in pursuance of which an order came to be passed on 27.3.1981 by the Tahsildar to enter his name in the revenue records. Thereafter, the Tahsildar Honnali also passed an order for change of katha in favour of the plaintiff. Since 1979, the plaintiff is in exclusive possession and enjoyment of the suit 4 schedule property without any interruption. The defendant has no manner of right, title or interest over the property. Despite the same, defendant approached the Tahsildar Honnali on the basis of the sale deed executed by Abdul Razak Sab and Mohamed Hanif S/o.Kallu sab claiming that he has acquired the right, title and interest over the suit property and accordingly for change of katha in his favour in the year 1985-86. The Tahsildar Honnali after hearing the parties passed an order rejecting the claim of the defendant.
5.1. Aggrieved by the said order, the defendant preferred an appeal before the Asst. Commissioner who by his order dated 4.7.1987 allowed the appeal exparte and set aside the order of the Tahsildar and directed the entries to be made in the name of the defendant.
5.2. Aggrieved by the said order the plaintiff preferred revision before the Deputy Commissioner, Shimoga. The same came to be rejected not on merits of the case, but on the ground that a revision is not maintainable in law u/s.136(3) of the Karnataka Land Revenue Act 1964 in view of the judgment of this Court 5 in the case of Maharaja Niranjana Jagadguru Mallikarjuna Murugarajendra Mahaswamy Mattadhipathi - vs - D.C.Coorg.
5.3. Further, it was contended that the defendant has no manner of right, title or interest over the suit schedule property and he is trying to claim right over the property on the basis of the sale deed said to have been executed by Abdul Razak Sab and Mohammed Hanif. The defendant has not acquired any title under the sale deed since the vendor of the defendant did not have either possession or title to the property in question. The learned Asst. Commissioner, Shimoga, without considering all these aspects, without trying to trace the title on the basis of the claim of defendant and without examining all the records passed an order directing the entries to be made in the name of the defendant in respect of S.No.54/2 i.e. suit schedule property. It is also his case that the defendant has suppressed several facts which are to his knowledge while obtaining the order in his favour from the Asst. Commissioner, Shimoga. It is relevant to mention on 6 the basis of the very same sale deed, the defendant had approached the revenue authorities in the year 1974 for change of katha and the then Tahsildar has rejected his claim on the ground that his vendors did not have valid title and were not in possession of the property which has been sold under the sale deed. It is the case of the plaintiff that right from 1979, he has been in possession and enjoyment of the suit schedule property as absolute owner thereof. The vendors of the plaintiff were also in possession of the property without any interruption prior thereto i.e. from 1948 in the year in which the vendors of the plaintiff have acquired property. It is also his case that apart from the same, the defendant has never exercised any right, incidents or characteristics of the property at any point of time. Therefore, the defendant is not entitled to have the katha of the property in his name and the consequential entry in the cultivators column.
5.4. It is further contended that an erratic preparation and maintenance of the revenue records contributed to an amount of confusion so far as the suit 7 property is concerned. It recently came to light that the survey authorities while effecting phoding of S.No.54 of Honnali village wrote the name of Sri.H.Shabbir Ahmed upon S.No.54/2. H. Shabbir Ahmed immediately thereafter approached the survey authorities to correct the survey number as he was in possession and enjoyment in respect of the portion of the land shown in S.No.54/3. After holding an enquiry the name of Shabbir Ahmed was entered in respect of S.No.54/3. They could have assigned the sub number 2 to the portion of land phoded in their records as sub-number 3 and revamped the sub-numbers making necessary changes in the numbers of the sub-divisions maintaining the name of the owners and persons having rights in respect thereof intact. The plaintiff believed the number of the sub-number to be S.No.54/2 of Honnali by verifying the relevant revenue records. H.Shabbir Ahmed had all along been in possession and enjoyment of land in S.No.54 lying adjacent to Shikaripur Honnali road. The portion of the road lying in s.No.55/1 and S.No.61/3 of Honnali lay contiguous 8 and formed one block excepting the fact that Honnali- Shikaripur road passed through his holding separating the land in S.No.61/3. The said road even now separates the land in S.No.61/3 from S.No.55/1 and the suit property. Even though the name of H.Shabbir Ahmed was shifted from S.No.54/2 to S.No.54/3, the position on the field did not change. Shabbir Ahmed has the right to be in possession and enjoyment of the portion of the land in S.No.55/1. The rights of the plaintiff purchased in respect of the portion of land in S.No.54 lie contiguously to S.No.55/1 of Honnali. In survey records it has come to be indicated as S.No.54/2 of Honnali. The whole confusion in respect of the survey numbers is, as a result of acts of mis-feasance of the survey authorities and lack of co-ordination. Therefore, it is prayed for declaration that he is the owner in possession of the suit land and for consequential relief of permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property. 9
5.5. After service of notice, the defendant appeared and contested the suit by filing his statement. In his statement he denied the case of the plaintiff and the boundaries given in the plaint schedule. He contended on the west of the suit property there is land of Marajogi Haladappa i.e. the land purchased by him on 5.7.1974 prior to the purchase by the plaintiff. The vendors of the plaintiff have no right, title or interest in the schedule land as on the date of sale made in favour of the plaintiff. The suit land was in possession and enjoyment of the sons of one Kallu sab, Abdul Razak and Mohamed Haneef who are the vendors of the defendant. The plaintiff cannot claim any right, title and interest over the said land. It is his further case that Malik sab, Budan Sab, Kallu sab and Ajeem sab were brothers and were members of the joint family. The suit land along with other lands were jointly acquired by the brothers. As Malik Sab was the eldest male member, the lands purchased by the brothers were registered in the name of Malik Sab. The said Malik Sab died leaving behind no issues. Therefore, the 10 properties were partitioned equally between Kallusab and Azeem sab and their successors. The suit land fell to the share of Kallu sab and his sons Abdul Razak and Mohamed Hanif. The land in S.No.55/1 of Honnali fell to the share of Ajeem Sab and his son Shabbir Sab, the vendor of the plaintiff. So Shabbir Ahmed and his successors had only the right to sell S.No.55/1 and not any piece of land in S.No.54/2. As the vendors of the plaintiff were muslims and they were ignorant of Kannada language, the plaintiff influenced his scribe to include the schedule land also at the time of registering the sale deed on 6.8.1984. The vendor of the plaintiff signed without knowing the contents of the said document. The plaintiff and the scribe played fraud on the vendors in collusion. The vendors were also not in possession and enjoyment of the same. The defendant is not aware of the said transaction between the plaintiff and Shabeer Ahmed. He also contended that prior to the date of the said sale, the contention of the plaintiff that he had entered into an agreement to purchase in the year 1979 is false and he was put in possession of 11 the properties. Plaintiff applied for change of katha in the revenue records and accordingly, it was entered. The said entry was made behind the back of the defendant. The order of the Tahsildar dated 27.3.1981 is illegal. If at all the plaintiff is in possession, he is a trespasser and hence he has to be ousted. It was further contended that he approached the Tahsildar on the basis of the sale deed executed by his vendors Abdul Razak Sab and Mohamed Haneef in the year 1985-86 to change the katha and pahani of the said land. The then Tahsildar rejected the claim of the defendant. He preferred the appeal before the Asst. Commissioner, Shimoga in R.A.NO.15/85-86. The order of the Tahsildar was set aside. The plaintiff preferred revision petition No.12/87-88 before the Deputy Commissioner, Shimoga who rejected the revision as not maintainable. The plaintiff ought to have approached the proper forum and he ought not to have filed the present suit. Hence, the suit is not maintainable. The ancestors of the defendants were not in possession and enjoyment of the suit schedule property. He also further contended that 12 the contention of the plaintiff that the erratic preparation and maintenance of the survey and revenue records has contributed to an amount of confusion insofar as the plaint schedule property is concerned is false. The plaintiff is trying to confuse the court by amending the plaint. All other averments made in the amended plaint para 7A are false and incorrect. They are imaginary. The court has no jurisdiction to entertain and give findings in respect of the survey and settlement. There is no land in S.No.54/2 alleged to have been purchased by the plaintiff. He has come up with the amended plaint which is not covered in the sale deed executed by Shabeer Ahmed. 2 acres 20 guntas of land in S.No.54/2 has been purchased by the father of the defendant which is now in possession and enjoyment of the defendant and the remaining 36 guntas of land is in possession and enjoyment of Mohamed Ameer Sab. He also contended that the suit is not properly valued. There is no cause of action for the suit. It is bad for non-joinder of necessary parties as the plaintiff has not brought on record necessary LRs 13 of the defendant Marajogi Haladappa. Hence, the suit be dismissed.
5.6. On the basis of the above pleadings, the trial Court framed the following issues :-
i) Whether the plaintiff proves that he is the owner of the suit property?
ii) Does he further prove that he is in lawful possession of the suit property?
iii) Whether he proves the alleged obstructions by the defendant?
iv) Whether the suit is bad for non-joinder for necessary parties?
v) What decree or order?
5.7. The plaintiff in support of his case got himself examined as PW1 and produced 19 documents which came to be marked as exhibits P1 to P19. The defendant examined himself as DW1 and one more witness as DW2. He produced 8 documents which came to be marked as exhibits D1 to D8. 14
5.8. The trial Court on perusal of the oral and documentary evidence placed on record held that the plaintiff has proved that he is the owner in lawful possession of the suit schedule property. He has further proved that the defendant has obstructed his possession and the suit is not bad for non-joinder for necessary parties and accordingly, by his judgement dated 21.04.2001 decreed the suit of the plaintiff.
5.9. Aggrieved by the said judgment and decree of the trial Court, the defendant preferred R.A.No.229/02 before the Civil Judge (Sr.Dn.) Harihar. The learned Appellate Judge on hearing the counsel for the respective parties and on going through the records called for in the case by his judgment and decree dated 19.1.2006 dismissed the appeal preferred by the defendant.
6. Aggrieved by the said judgment and decree of the courts below the defendant is in appeal before this Court.
7. The learned counsel appearing for the appellant/defendant contended that the courts below 15 erred in decreeing the suit of the plaintiff despite the plaintiff having failed to prove that he is the owner in possession of the suit property by placing cogent and reliable evidence, both oral and documentary. He further contended that as the plaintiff has specifically pleaded in the plaint that he is the owner in possession of the property situated in S.No.54/2, for which he has also produced documents contrary to the pleadings and the documents placed on record, the courts below have committed an error in decreeing the suit of the plaintiff holding the suit schedule property are located in S.No.54/3 as described in the schedule appended to the plaint. He also further contended that the courts below committed an error in relying upon exhibits P3, 15 and 16 to come to the conclusion that they being ancient documents aged more than 30 years by virtue of S.90 of the Indian Evidence Act, the recitals in the said documents cannot be brushed aside and the recitals in the said documents confer title on the plaintiff despite the recitals in the said documents being contrary have committed error in decreeing the suit of the plaintiff. He 16 also further contended that the courts below failed to see that the plaintiff has not produced any revenue records disclosing his name being the owner in possession of the property and despite the same, the courts below have erred in coming to the conclusion not only he has established his title to the property, but also he is in possession of the same which is contrary to the material on record. He also further contended that one Ameer Sab had filed O.S.40/85 against the plaintiff in respect of the portion of the suit property and the same has been admitted by the plaintiff in his cross examination. The said suit ultimately ended in this Court in regular second appeal in favour of Ameer sab. As the subject matter of the said suit is the same as that of the suit property, the plaintiff having failed in the said suit, the courts ought to have dismissed the suit as barred by res judicata. Having not done so, the findings of the courts below cannot be sustained. Therefore, he contended that the impugned judgement and decree of the courts below cannot be sustained and accordingly they be set aside. The learned counsel in 17 support of his submission relied upon the judgments of this Court and the Apex Court.
8. Per contra, the learned counsel appearing for the contesting plaintiff supported the impugned judgment and decree of the courts below.
9. This court at the time of admission of this appeal has raised the following substantial questions of law for consideration :-
i) Whether the courts below are justified in having concurrent finding by granting the decree for declaration of title and permanent injunction against the appellant-defendant when respondent/plaintiff has failed in the earlier suit O.S.No.40/1985 which ultimately concluded in RSA No.692/1990 wherein this Hon'ble Court denied the relief in the suit filed against the vendor of the plaintiff namely Mohammed Ameer Sab?
ii) Whether the courts below are justified in having concurrent finding in granting the decree for declaration and permanent injunction wherein the principles of law of res-judicate applies? 18
10. Taking the rival contentions the evidence and the documents on record the point that arises for consideration is:-
"Whether the impugned judgment and decree of the courts below suffer from any illegality or infirmity calling for interference in this appeal?"
11. It is the case of the plaintiff that he is the owner in possession of the suit schedule property having purchased the same under the sale deed dated 6.8.1984 from one Shabir Ahmed and his sons. Ever since the date of purchase, he is in possession and enjoyment of the suit property. It is contended by him in the pleadings that as the recitals in the sale deed reflected S.No.54/2, initially he pleaded in the plaint that the suit property was having S.No.54/2. Ultimately, he came to know that the survey number of the suit schedule property is not 54/2, but it is 54/3 for which steps had been taken by his vendor Shabir Ahmed to get the same corrected from the concerned revenue authorities. Accordingly, the plaint has also 19 been amended and the schedule has also been amended. It is stated in the plaint that apart from the suit schedule land, he had also purchased some portion of the land in S.No.55/1 and 61/3. The boundaries which he has mentioned to the suit schedule property comprised of the lands which he had purchased under the sale deed Ex.P1 and therefore, the description of the property with the boundaries had been correctly given in the plaint.
12. On the other hand, it is the case of the defendant that the plaintiff is not possession of any land in S.No.54/3. The case of the plaintiff according to the pleadings and the documents placed on record discloses that he is the owner in possession of 1 acre 28 guntas situated in S.No.54/2. The same is also supported by the documents coupled with the evidence on record. It does not tally with the description of the suit schedule property.
It is the case of the defendant that his vendors are the owners in possession of the land to an extent of 20 2 acres 20 guntas situated in S.No.54/2. It is his case that he had purchased the said property from one Abdul Razak and Mohammed Haneef who are the sons of one Kallusab. The suit schedule land has no nexus with the land that he is in possession and as the plaintiff has not come with the clean hands to the court as to the description of his property, the relief sought for by the plaintiff cannot be granted.
13. The material on record reveals that the source of title to both the plaintiff and the defendant is derived from the family of one Mallik Sab and Buden Sab who are brothers. The said Mallik Sab did not have any issues. Late Buden Sab had two sons by name Kallusab and Azeem Sab. Kallu Sab had three sons by name Abdul Razak, Abdul Jaleel and Mohammed Haneef. Azeem Sab had two sons by name Shabbir Ahamed and Nizzar Ahamed. It is an admitted fact that Mallik Sab and Buden Sab, the two brothers, had owned an extent of 2 acres 16 guntas in S.No.54/2. The two brothers had equal share in the said extent of the 21 land to an extent of 1 acres 28 guntas each. Buden Sab pre-decased Mallik Sab. Mallik Sab, thereafter, bequeathed his share of 1 acre 28 guntas in favour of Azeem Sab who is the son of Buden Sab. Out of the balance 1 acre 28 guntas which had fallen to the share of Buden Sab, Kallu Sab and Azeem Sab divided amongst themselves. By virtue of the same they got 34 guntas each. Therefore, Azeem sab got 1 acre 28 guntas that had been bequeathed to his share by his senior uncle Mallik Sab and also 34 guntas which had come to his share from the share of his father. This Azeem Sab made a settlement deed in favour of his sons by name Shabbir Ahmed and Nizzar Ahamad. Under the settlement deed he gave the suit schedule property in equal half in favour of his sons Shabbir Ahamad and Nizzar Ahamed and also the property that was located in S.No.55/1. Subsequently, Nizzar Ahamad sold his share in favour of Shabbir Ahamed including S.No.55/1. It is thereafter the plaintiff purchased the suit property 1 acre 28 guntas and the land in S.No.55/1 from Shabir Ahamed. With this what Kallu 22 Sab had got from his father was only 34 guntas in S.No.54/2 apart from other lands.
14. The defendant claims that the two sons of Kallu Sab i.e. Abdul Razak and Mohammed Haneef have sold 2 acres 20 guntas in S.No.54/2 which is not disputed by them. As to how they got 2 acres 20 guntas to their share is not forthcoming as the said extent of land is not in existence in that survey number at all. Whatever may be as already pointed the source of title to both plaintiff and defendant is from Mallik Sab and late Buden Sab. As already pointed out plaintiff claims that he has purchased the property from Shabbir Ahamed. No doubt in the body of the plaint initially he has described the suit schedule property is located in S.No.54/2. Later he has got the plaint amended by assigning reasons that the suit schedule property is situated in S.No.54/3 and not in S.No.54/2 and that has been done by virtue of the survey conducted in the year 1980-81. A perusal of Ex.P3, P15 and P16 also goes to show that the extent of the land that is in 23 dispute now was in the hands of Aseem Sab who is the father of Shabbir Ahamed from whom the plaintiff has purchased the property. Though it was strongly contended by the counsel for the defendant/appellant that what had been purchased by the plaintiff is not the suit property as the description of the same do not tally with the boundaries mentioned in the schedule to the plaint and the title deed, Ex.P3 i.e. the settlement deed relied upon reveals that Azeem Sab has settled the property in favour of his sons in respect of S.No.54/2 and 55/1. But, the boundaries mentioned by the plaintiff in the schedule do tally with the boundaries mentioned in the settlement deed made by Azeem Sab. Apart from this, the material on record reveals Azeem Sab got the suit schedule property from his senior uncle under a will. The learned counsel for the appellant/defendant vehemently contended that the will is not proved and therefore, the source of title to Azeem sab to his extent of the suit schedule property is not established by the plaintiff. We are not now deciding the question of validity of the will here. The will is dated 24 25.4.1939. The recitals of the will clearly go to show that late Mallik Sab has bequeathed his share of property i.e. 1 acre 28 guntas in favour of Azeem sab. In view of this document it follows by virtue of Section 90 of the Evidence Act that this property has been bequeathed in favour of Azeem Sab who in turn has settled in favour of his sons and after it having been purchased by one of the sons viz. Shabir Ahamed it has been sold in favour of the plaintiff. It was vehemently contended that as the boundaries in the schedule do not tally with the title deeds and coupled with the admission of the plaintiff that there was an earlier suit filed wherein the very same suit schedule property was involved, which has been affirmed by this Court against the plaintiff, the courts below have committed an error in coming to the conclusion that the plaintiff has established his case. According to the counsel for the appellant/defendant, the plaintiff had admitted that one Amir Sab had filed O.S.NO.40/85 against him in respect of 36 guntas of land. The said suit has been decreed and affirmed by this Court. The suit schedule property 25 and the one involved in the present suit in view of the admission given by the plaintiff is one and the same. Therefore, the present suit is hit by res judicata as the suit filed against the plaintiff in respect of the very same property has already been decided against him. Except the admission of the plaintiff in his cross examination, there is no material placed on record to show that the suit filed by Amir Sab against the plaintiff which has gone against him is in respect of the very same suit schedule property. Further there is no material on record to show that this Amir Sab has nothing to do with the family of Mallik Sab or late Buden Sab who admittedly were the owners of the property situated in S.No.54/2. Defendant has not pleaded this in his statement. No issue has been raised in this connection. Merely because the plaintiff has given an admission that Amir Sab has filed the suit against him which came to be decreed and confirmed by this Court that by itself is not sufficient to hold that the present suit is barred by res judicata in the absence of any substantive evidence and the documents placed on record to show that the 26 subject matter involved in the earlier suit is the same as the one in the present suit.
15. Further, it was also vehemently contended that the entries in the revenue records do not disclose the name of the plaintiff being the owner of the suit schedule property. There was a dispute with respect to the revenue entries which has ended in favour of the defendant earlier and therefore, the plaintiff has not established that he is the owner in possession of the suit schedule property by placing proper revenue records.
The documents Exhibits P16,17,18 and 19 disclose that the suit schedule property has been reassigned as S.No.54/3 after conducting survey. Though an attack was made by the counsel for the appellant/defendant that the survey report has not been properly proved in accordance with Section 142 of the Land Revenue Act, the said survey report is of the year 1980-81. At the time it was re-assigned no steps have been taken by the defendant to challenge the said 27 reassigning of the survey number. It was also contended that the survey report is a got up document for the purposes of the suit in order to defeat the claim of the defendant in respect of the suit property. As exhibits P16, 17, 18 and 19 are of the year 1980-81 and as the revenue records disclose that the name of the original owners of the land has been rounded off and shown the name of the plaintiff in the RTC extracts produced, it is to be taken that the suit schedule land has been properly described by the plaintiff with proper boundaries relying upon the title deeds and he has also established that he is in possession of the property ever since the date of his purchase.
16. The counsel for the appellant also vehemently contended that since the plaintiff has not placed revenue records along with the plaint or during the course of trial, the matter deserves to be remitted back to the court by virtue of Section 132 of the Land Revenue Act.
28
16.1 Ex.P4, the RTC discloses the name of the plaintiff is entered on the basis of mutation entry. In view of the fact that the plaint has been amended relying upon the title deeds and Exs. P17, P18 and P19 which have been placed on record on the basis of which entries in the revenue records have been made, it will have to be held that the plaintiff has produced the revenue records along with the suit and therefore, there is no merit in the said contention.
16.2. The substantial question of law that has been raised by this court is that when the plaintiff has failed in earlier suit O.S.NO.40/85 which has been ultimately concluded in RSA 692/90 whether the suit is hit by the principles of res judicata?
16.3. As already pointed out there is no substantive material placed on record to show that the suit schedule property involved in O.S.40/85 is the same property as that of the property involved in the present suit. The courts below on an appreciation of the evidence and the documents placed on record, in my 29 view have committed no error in coming to the conclusion that the plaintiff is the owner in possession of the suit schedule property calling for interference in this appeal. Accordingly the substantial question of law raised is held against the defendant.
17. For the reasons satiated to above, I proceed to pass the following:-
ORDER The appeal is dismissed. Parties to bear their own cost.
Sd/-
JUDGE rs