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Liladhar Vs. Siaram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3720 of 1966
Judge
Reported inAIR1976All213
ActsCode of Civil Procedure (CPC) - Sections 100; Evidence Act, 1872 - Sections 90; Registration Act - Sections 17
AppellantLiladhar
RespondentSiaram and anr.
Appellant AdvocatePrakash Gupta, Adv.
Respondent AdvocateS.S. Verma, Adv.
DispositionAppeal dismissed
Excerpt:
evidence - admissibility - section 90 of evidence act, 1972 and section 17 of registration act - documents thirty years old - court allowed the documents in evidence - without any formal proof. - - the same reasoning apply to the sale deed dated 25-7-1906 as well which was inadmissible also because it was not registered......its possession as owner till the abolition of the zamindari. on 16-12-1954, jaleel uddin sold the disputed house to one kishan swarup. on 5-4-1961 smt. jai rani, widow of kishan swarup, sold it to the plaintiffs and one bholanath. after the death of kishan swarup, his heirs raised a dispute but eventually a compromise was arrived at and the heirs of kishan swarup, namely, brahm swarup and jagdish executed a deed of relinquishment in favour of the plaintiffs. the defendant without any right made certain constructions in the disputed house which had become dilapidated and hence the suit for possession.3. the defendant appellant resisted the claim on the allegations that the plaintiffs were not the owners of the disputed house at all. it was alleged that the defendant's father khyali ram.....
Judgment:

Chandra Prakash, J.

1. This is a defendant's second appeal against the judgment and decree dated 25th October, 1966, of Sri G. P. Srivastava, Civil Judge, Bareilly dismissing the appellant's appeal after confirming the decree of the trial court.

2. The suit giving rise to this second appeal was filed by the plaintiffs respondents against the defendant appellant for possession of the property detailed in the plaint by demolition of defendant's construction, and for the recovery of Rs. 50/- as damages. The allegations in the plaint were that one Jaleel Uddin purchased the Zamindari of Nandgaon in the year 1922 and he remained in its possession as owner till the abolition of the Zamindari. On 16-12-1954, Jaleel Uddin sold the disputed house to one Kishan Swarup. On 5-4-1961 Smt. Jai Rani, widow of Kishan Swarup, sold it to the plaintiffs and one Bholanath. After the death of Kishan Swarup, his heirs raised a dispute but eventually a compromise was arrived at and the heirs of Kishan Swarup, namely, Brahm Swarup and Jagdish executed a deed of relinquishment in favour of the plaintiffs. The defendant without any right made certain constructions in the disputed house which had become dilapidated and hence the suit for possession.

3. The defendant appellant resisted the claim on the allegations that the plaintiffs were not the owners of the disputed house at all. It was alleged that the defendant's father Khyali Ram purchased the disputed house on 25-7-1906 from the Zamindar Mirza Abid Husam. Thereafter Khyali Ram aforesaid mortgaged the disputed house with Bhagwan Das and Beni Ram on 23-12-1918. Bhagwan Das and Beni Ram mortgagees aforesaid filed Suit No. 482 of 1930 for the enforcement of the said mortgage. Khyali Ram and his son, defendant, redeemed that mortgage. It was, therefore, alleged that the defendant appellant was the owner of the disputed house. Limitation was also pleaded as bar of the suit. The claim for damages was also challenged.

4. The trial court framed four issues in the case and after taking evidence of the parties came to the conclusion that the plaintiffs were the owners of the disputed property and the defendant was not its owner. It was further held that the suit was within time. The trial court further held that the plaintiffs were entitled to Rs. 50/- as damages. Accordingly, the trial court decreed the suit for possession after demolition and also decreed the suit for recovery of the damages.

5. Against the above judgment and decree of the trial court, the defendant filed an appeal before the lower appellate court and the lower appellate court after hearing the parties confirmed the decree of the trial court and dismissed the appeal.

6. Feeling aggrieved, the defendant appellant has come up in appeal before me.

7. I have heard the learned counsel for the parties and have also gone through the record of the case. I am afraid the finding of the courts below cannot be interfered with. Both the courts below have given a finding of fact after considering the entire evidence on record that the plaintiffs were the owners of the disputed house and they were in possession of the same. These are purely the finding of fact which can hardly be challenged in second appeal.

8. The first contention raised before me on behalf of the appellant is that the defendant appellant relied upon his title and the title of his predecessor based on the sale deed dated 25-7-1906 executed by Mirza Abid Hussain in favour of the defendant's father Khyali Ram, the mortgage deed dated 23-12-1918 executed by Khyali Ram aforesaid in favour of Bhagwan Das and Beni Ram and the Suit No. 482 of 1930 filed by Bhagwan Das and Beni Ram aforesaid for the enforcement of the mortgage deed. The trial court rejected these documents as inadmissible in evidence. The lower appellate court rejected the mortgage deed dated 23-12-1918 on the ground that it did not relate to the property in dispute. The view of the trial court that the deeds dated 25-7-1906 and 23-12-1918 were not proved does not appear to be correct. These documents do not require any formal proof and they could be read in evidence without any formal proof. I was carried through the contents of both these deeds but the boundaries given therein were not connected with the property in dispute. The lower appellate court was, therefore, right that the mortgage deed dated 23-12-1918 related to some other property. The same reasoning apply to the sale deed dated 25-7-1906 as well which was inadmissible also because it was not registered.

9. The second contention raised before me was that the courts below have relied on the sale deed dated 16-5-1954 executed by Zalil Uddin in favour of Kishan Swarup the predecessor of the plaintiffs. This deed was unregistered and, therefore, it was inadmissible in evidence. Nonetheless it was admissible to show the nature of the possession of the vendee. The learned counsel for the appellant challenged this proposition, and advanced argument that the deed dated 16-12-1954 Paper No. 38 was totally inadmissible in evidence and it could not be seen even for the purposes of possession also and reliance wan placed on two rulings reported in Asaram v. Smt. Ram Kali, (AIR 1958 SC 183) and Bhawani Prasad v. Smt. Surendra Bala, (AIR 1960 All 126). The above rulings are distinguishable on the peculiar facts of those cases. What was held in those rulings was that once a party's adverse possession commences, it could not be disturbed by subsequent inadmissible documents which made the previous adverse possession permissible. These rulings are not the authority for the proposition that no unregistered document can be considered at all for seeing the possession of the party entering into the possession on the basis of it.

There is another aspect of the matter, Even if the sale deed dated 16-12-1954 is excluded from consideration altogether, there is enough evidence on the record consisting of the oral statements of the witnesses examined by the plaintiffs respondents and the sale deed dated 5-4-1961 to establish the claim of the plaintiffs respondents.

For the reasons given above, there is no force in this appeal which is accordingly dismissed with costs.


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