Court No. - 19 Case :- SECOND APPEAL No. - 227 of 2010 Petitioner :- Sahdeo Prasad S/O Sarjoo Prasad & Ors. Respondent :- Shiv Narain & Ors. Petitioner Counsel :- R.B.L. Shukla,Ghanshyam Yadav Hon'ble S.C. Chaurasia,J.
Heard the learned counsel for the appellants and perused the record.
This second appeal has been preferred by the plaintiffs/appellants with
the prayer that the impugned judgment and decree dated 15-03-2010
passed by the learned Additional District Judge, Court No. 5, Pratapgarh
in First Civil Appeal No. 343 of 1983 and the impugned judgment and
decree dated 30-08-1983 passed by the learned VIII Additional Munsif ,
Pratapgarh in R.S. No. 339 of 1980, may be quashed.
The brief facts, giving rising to this appeal, are that the plaintiffs filed a
suit no. 339 of 1980, Sahdeo and Others Versus Shiv Narain and Others
for permanent injunction with the allegations that the plaintiffs are
Bhoomidhar in possession of Gata No. 1557 area 1-11-0 and the
plaintiff, Sahdeo had planted tress of mango, Mauha, Neem and Babool
etc. thereon. The defendants had no concern with the disputed land and
they had never been in possession over the said land. The defendants
started giving threats of raising construction and cutting trees in the
month of October, 1980. The defendants had contested the suit and filed
written statement and had denied plaintiffs’ version. Their version is that
the area of Khasra No. 1557 Bandobast Soyam is 5-2-2 Dhur. The
plaintiffs have neither given the boundary of the disputed land in the
plaint nor have filed the site-plan and the land claimed by the plaintiffs is
not identifiable at the spot. Plaintiffs’ 1-10-1 Dhur is situated towards
west in disputed plot number 1557 in Gata No. 1557/3 and their some
trees of Mango & Mauha etc. are standing thereon. The part of the said
land has been included by the plaintiffs in front of their house after
constructing KHAI. The plaintiffs have no concern with Gata No. 1557.
The land measuring 1-11-0, lying towards east of the house of the
defendants, belongs to the defendants and the trees planted by their
father are standing thereon and the defendants are in possession over
the same. The plaintiffs have no concern with the said land and they
have never been in possession over the said land. The plaintiffs’ house
is situated towards the west of the defendant’s house.
On the pleadings of the parties, eight issues were framed by the learned
trial court. The plaintiffs have examined Sahdeo, P.W.-1, and Mohan Lal,
P.W.-2 ,in support of their case and also filed documentary evidence.
The defendants examined Shiv Narain, D.W-1, in support of their case.
The report of the Commissioner was also obtained.
After appraisal of the evidence, it was held by the learned trial court that
the plaintiffs are not Bhoomidhar in possession of the disputed land;?
that the suit is not time-barred; that the suit is not barred by section? 49
of the Consolidation of Holdings Act. On the basis of said findings, the
suit was dismissed with cost vide judgment and decree dated 30-08-
1983.
Feeling aggrieved by the said judgment and decree dated 30-08-1983,
the plaintiffs preferred the First Civil Appeal No. 343 of 1983, Sahdeo
and Others Versus Shiv Narain and Others. The learned First Appellate
Court considered the evidence available on record and confirmed the
findings of the learned trial court and dismissed the appeal with costs
vide judgment and decree dated 15-03-2010.
Feeling aggrieved by the said judgments and decrees, plaintiffs have
preferred the present Second Appeal.
Learned counsel for the appellants has submitted that on the basis of
the admission made by the defendants, the suit ought to have been
decreed partly. He has further submitted that the impugned judgments
and decrees passed by the learned trial court as well as learned First
Appellate Court are perverse? and against the evidence available on
record and hence, the same may be quashed.
From perusal of the record, it transpires that the plaintiffs have claimed
themselves Bhoomidhar in possession of Gata No. 1557 area 1-11-0,
but, they have not filed any documentary evidence to establish that they
are Bhoomidhar in possession of Gata No. 1557 area 1-11-0. The Gata
No. 1557 consists of Gata Nos. 1557/1, 1557/2 & 1557/3. Hence, on the
basis of Khatauni filed by the plaintiffs indicating that they are
Bhoomidhar of Gata No. 1557/3, it cannot be inferred that they are
Bhoomidhar in possession of Gata No. 1557. The plaintiffs have not
taken any steps for measurement of the land in dispute by praying for
issue of a Survey Commission and? the land in dispute is not identifiable
at the spot.? The learned trial court as well as learned First Appellate
Court have considered the evidence produced by the parties thoroughly
and have dismissed the suit.
After perusal of the record and the submissions made on behalf of the
appellants, I am of the view that the findings recorded by the learned
trial court as well as learned First Appellate Court are perfectly valid and
no interference is warranted in the said impugned judgments and
decrees.
In the instant appeal, no substantial question of law is involved and
hence, it cannot be admitted and it is liable to be dismissed at the
admission stage.
In view of the aforesaid discussions, the Second Appeal is dismissed at
the admission stage.
Order Date :- 3.7.2010
AKS