1
Court No. 1
Second Appeal No. 1736 of 1978
Baij Nath Singh .............Appellant.
Vs.
Sankatha Singh & others ..Defendants/respondents.
*******
Hon'ble Rakesh Tiwari, J.
Heard learned counsel for the parties and perused the record.
This second appeal was filed challenging the validity and correctness
of the judgments and decree dated 9th March, 1978 and 26th April 1974
passed by III Civil Judge, Varanasi in Civil Appeal No. 198 of 1974 and by
Vth Additional Munsif, Varanasi in Original Suit No. 224 of 1971.
The appellant has assailed the impugned judgment on the ground that
the material documentary evidence filed by plaintiff-appellant was ignored by
the courts below treating the same as inadmissible and irrelevant. The
appeal was admitted on the following substantial questions of law;
“(1)Whether the material documentary evidence filed by the plaintiffs-
appellants was ignored by the courts below treating the same as
inadmissible and irrelevant.
(2) Whether the courts below were justified to reject the plaintiffs’ case for
want of proper identification of the land in dispute, even though the
defendants expressly waived the plea of identifiability of the disputed lane”.
The plaintiffs, father and son, filed suit no. 224 of 1971 against
Sankatha Singh and Bhrigunath Singh, two brothers and sons arrayed as
respondents nos. 3 to 6 for restraining the defendants from demolishing the
wall shown by letters Cha, Da in the plaint map and from raising any wall on
south of the wall shown by letters Cha Da and also from taking possession
of the land which lies to the west of the room shown by letter Ka, Kha, Ga,
Gha in the plaint map. They also prayed for demolition of the room which
the defendants have constructed on the land shown by letters Cha, Ja, Jha,
Ta in the plaint map, and for restraining them from raising any further
constructions on this land.
2
The case of the plaintiff as per plaint was that the defendants
were not old residents of the village; that the property which is in their
possession belonged to one Devi Singh, who was father-in-law of the
defendants no. 1 and 2; that after death of Devi Singh and his wife,
his son Buddhu Singh became owner of the property, which is in
possession of the defendants and the defendants are now residing in
it as licensee of Buddhu Singh; that this property which originally
belonged to Devi Singh lies to the north of the plaintiff’s house; that
the southern boundary of Devi Singh’s property is shown by letters
Ka, Cha in the plaint map; that in this house of Devi Singh
constructions were on the western side and his Sahan was in the
eastern portion; that the defendants no. 1 and 2 wanted to construct a
new house in the eastern part of the Sahan of Devi Singh and on
advice of Brahamns they wanted extension of that house to the extent
of 5 Hath towards south; that since the land lying towards south of
that house belongs to the plaintiffs, the defendants obtained
permission from the plaintiffs to include 5 Haths land in their house on
southern side and thus constructed their new house.
Defendant no. 1 and his son defendant no. 6 filed one written
statement and defendant no. 2 and his son defendant no. 3 also filed
written statement. Defendant no. 4 who is son of defendant no. 2, did
not file any written statement. The contents of both the written
statements are almost similar. In the written statements the
defendants admitted that the property which is in their possession,
belonged to Devi Singh originally, but contended that whereabouts of
Buddhu Singh son of Devi Singh are not known for last 12 years so
they are now occupying this property as owner by way of adverse
possession.
On the above pleadings of the parties the trial court framed
following issues:
(1) Whether the plaintiffs are owners in possession of land in
suit?
3
(2) Whether the defendants have wrongfully encroached
upon the plaintiffs land in suit?
(3) Whether the land in suit is property described in the plaint
and is identifiable? If not what is the effect?
(4) Whether the suit is within time?
(5) To what relief, if any, are the plaintiff is entitled?
Consequently, the trial court held that the defendants had not
encroached upon the plaintiff’s Sahan and that the plaintiffs were not
the owners of the disputed land as they could not prove their
ownership to the land in suit. In appeal, the lower appellate court
uphold the findings of the trial court. Apart from finding that the
plaintiffs-appellants were not owners of the land lying on west of Devi
Singh’s house it was found by the first appellate court that the
defendants-respondents have not wrongfully encroached upon any
portion of the plaintiff’s house.
The counsel for the appellant submits that both the courts
below have given concurrent findings of fact against the appellant.
However, he did not argue to make out any case in support of
substantial questions of law that material documentary evidence filed
by the plaintiff/appellant was ignored by the courts below and rejected
his case for proper identification of land.
In view of the facts and circumstances of this case, the Court is
not inclined to interfere in concurrent findings of fact recorded by the
courts below as no substantial question of law arises in this second
appeal from the judgments of the courts below which have recorded
concurrent findings of fact against the appellant.
The appeal is, accordingly, dismissed.
Dated: 26.7.2010
RCT/-
4