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Laxmi Narayan Vs. Gopilal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 80 of 1958
Judge
Reported in1979WLN(UC)155
AppellantLaxmi Narayan
RespondentGopilal and ors.
DispositionAppeal dismissed
Excerpt:
.....the name to either prove the identity of the suit property nor there is any proof as to when this chabutra in dispute came into existence.;the plaintiff has to succeed on the strength of his own title and he cannot rely on the weakness of the proof of the defendants' side to establish their title to the satisfaction of the court.;appeal dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was..........and old one and it was incorrect to say that they had unauthorisedly taken possession of the land in dispute. they also alleged that the sale-deed appended with the plaint was forged one. some other pleas were taken in the written statement but they need no mention as they are hot material for the diposal of this appeal.3. the main point which was seriously contested by the party in the courts below was whether the chabutra measuring 18' x 8' on the south-east corner of the house mentioned in para 2 of the plaint belonged to the maheshwri samaj of kuchaman city and had been in its possession. this point was the subject-matter of the issue no. 1. in support of the issue the plaintiff produced ex. 1 an unregistered sale-deed, and ex 2, an entry in khata bahi showing that two.....
Judgment:

M.L. Joshi, J.

1. The plaintiff appellant Laxminarain filed a suit on behalf of the Maheshwari Samaj, Kuchaman, in the representative capacity under Order 1 Rule 8 CPC for possession of a Chabutra measuring 19 feet north-south and 8 feet east-west on the allegation that the defendant-respondents had taken Illegal possession of the Chabutra on 18.11.1962 by raising walls on the eastern ends of the Chabutra. According to the plaint allegation, the disputed Chabutra was situated on the south west corner of the house belonging to the Maheshwari Samaj and was purchased from one Chandra Paharia and they were in possession of the Chabutra as owner since years.

2. The defendants Nos. 1 and 2 in their written statement denied the ownership of the Maheshwari Samaj in respect of the disputed land alleged to have been occupied by Chabutra and also the ownership of the house-cum-nohra. They pleaded that the land in question is their duly purchased property and their possession is authorised and old one and it was incorrect to say that they had unauthorisedly taken possession of the land in dispute. They also alleged that the sale-deed appended with the plaint was forged one. Some other pleas were taken in the written statement but they need no mention as they are hot material for the diposal of this appeal.

3. The main point which was seriously contested by the party in the courts below was whether the Chabutra measuring 18' x 8' on the south-east corner of the house mentioned in para 2 of the plaint belonged to the Maheshwri Samaj of Kuchaman City and had been in its possession. This point was the subject-matter of the issue No. 1. In support of the issue the plaintiff produced Ex. 1 an unregistered sale-deed, and Ex 2, an entry in Khata Bahi showing that two apartment were purchased from Chandra Paharia under a sale-deed, and seven oral witnesses. The trial court raised presumption in regard to the execution of Ex. 1 by Chandra Paharia under Section 90 of the Indian Evidence Act. It, however, observed that as there was no mention of the boundaries nor there is measurement in the sale-deed so it is difficult to say that this sale deed related to the land in dispute. The trial court further made reference to its site inspection note which is a detailed one & is on the file. On the basis of the appreciation of evidence coupled with site inspection note it came to observe that the land in dispute is the part and parcel of the two underground apartments of the defendants' house, as doors of these apartments open in the defendants' house although the apartments are now in dilapidated condition having no roof. As regards the evidence produced on behalf of the plaintiff the trial court discarded their testimony on the ground that they belonged to Maheshwari community and are highly interested The trial court further made a pointed reference to the testimony of P W. 6 Ramdayal and P. W. 5 Shankerlal P W, 6. Ramdayal is 80 years whereas P W. 5 Shankerlal is 73 years. These witnesses have deposed that they had been seeing the Chabutra since their childhood. The sale-deed Ex 1 is of 1906 i. e. 58 year prior to the statements of witnesses The trial court, therefore, did not believe the plaintiff's version on the ground that if the Chabutra had been in existence as per the testimony of P W. 5 and P. W. 6, how there could be a mention of two apartments in a dilapidated condition. The trial court, therefore, came to the conclusion that there was no Chabutra at the time of the execution of Ex. 1. It further came to hold that there was no evidence on the record to show that the Chabutra was subsequently constructed. The trial court after disbelieving the plaintiff's witnesses has referred to the evidence of D W 3 Ramjeevan, DW 5 Abdul Rehman, DW 2 Rampal, DW 6 Kanhaiyalal, DW 7 Pannalal and DW 8 Nathmal. These witnesses have deposed to the possession of the defendant since they purchased the land in dispute under Ex P. 1. The trial court after appreciation of evidence of both the parties did not accept that the plaintiffs were the owners and in possession of the land in dispute and that the defendants have illegally occupied the land in dispute as alleged in the plaint. The trial court further held that the suit was barred by limitation as the plaintiffs have not been able to prove that they were dispossessed within 12 years of the filing of the suit.

4. On appeal, the learned District Judge concurred with the findings of the trial court to the effect that the land in dispute has not been established to be covered by Ex1 as the same neither contained boundaries of the disputed land nor does it contain its measurements nor its area It also agreed that there was no Chabutra in existence at the time of the sale-deed Ex. 1.The first appellate court, therefore in the absence of the specification of the boundaries in land comprised in the sale-deed Ex. 1 and also in the absence of measurements held that it was not established that the land is covered by Ex, 1. The appellate court further came to hold that there was no oral evidence to show as to when the disputed Chabutra came to be bulit upon. It was, therefore, of the view that the identity of the land could not be established by the plaintiff on the basis of Ex. 1. As regards Ex 2 the appellate court said that it was merely a memorandum in the Bahi, and has no evidentiary value. More over it does not establish the identity as to the extent of the land. The appellate court further said that the entry like Ex. 2 could be made at any time and therefore, Exs. I and 2 were not sufficient to establish the case of the appellant. The appellate court of course had not referred to the evidence of the plaintiff in detail but has come to observe that the nature of the plaintiff's evidence adduced in the case does not prove plaintiff's actual possession, It further said that it was not understandable that the underground cellars which are attached to the defendants' house and actually do form part and parcel of the defendants' house could ever be capable of any use by the plaintiff The appellate court agreed with the trial court that the plaintiff's evidence could not be believed as all the witnesses excepting the attesting witness Narain were interested being the members of the Maheshwari community and that there was no independent evidence establishing the plaintiff's title to the land in dispute. Consequently the first appellate court dismissed the appeal. Being aggrieved the plaintiff has come in second appeal.

5. Mr Maheshwari appearing on behalf of the plaintiff has tried to assail the findings of fact op the ground that there is misreading of the evidence and that Ex 1 has been misinterpreted .

6. On the other hand Mr. L.R. Mehta, learned Counsel for the respondents urged that the findings of fact arrived at by both the courts below being concurrent findings of fact based upon the appreciation of evidence, the same cannot be interfered with in the second appeal. He has also urged that there is no question of misinterpretation of Ex 1.

7. I have considered the rival contentions put forth on behalf of the respective parties. The first question which calls for consideration in whether Ex 1 has been misinterpreted by the trial court. Admittedly, Ex 1 does not contain the boundaries nor does it contain the requisite measurements. There is also no oral evidence to locate the identity of the land in question. Mr. Maheshwari however contended that the identity of the land is established from the document Ex. 1 read with boundaries mentioned in the plaint. The oral evidence is also of no assistance to establish the identity of the land in dispute, Both the courts have after appreciation of evidence recorded a concurrent finding of fact that the identity of the land in dispute does not stand established with reference to Ex 1. Mere reference in the sale-deed Ex 1 that the land in dispute is in the south-west, corner, is not sufficient to establish the identity of the land in question It is true that the appellate court has not referred to the statements of all the witnesses of the plaintiff. I have, therefore, gone through the statements of all the witnesses but have not been persuaded to disagree with the finding of the trial court, The testimony of none of the plaintiff's witnesses is sufficient to establish the identity of the land in dispute. P.W. 1 Laxminarain is the plaintiff who had filed the suit In a representative capacity. He is undoubtedly a highly interested witness and his testimony requires to be closely scrutinised. This witness has not given the specific measurements of the Chabutri in question. He has said that the Chabutra in question is 11 'Hath' from north to south and 6 'Hath' from east to west. His statement in this behalf is therefore too vague to establish the identity of the land. More over the sale-deed which has been referred to by this witness makes no mention of the Chabutra but makes reference to the dilapidated two apartments. The witness has not explained as to when this Chabutra came into existence. The plaintiff's own witness, namely, PW 5 Shankerlal, & PW 6 Ramdayal who are 73 years & 80 years respectively deposed to the existence of the Chabutra even prior to the date of the sale deed Ex1 as they have been seeing the Chabutra since their child hood. The testimony of this witness therefore cannot be held to establish the identity of the land in question. The next witness is PW 2 Hari Prasad. He also belongs to the Maheshwari community The land in question is claimed on behalf of the Maheshwari community and he is also a highly interested witness. He has stated that the Chabutra was being used for the communal meetings of the Maheshwari Samaj. It is not understood when the Maheshwari Samaj has a Nohra, how the Chabutra was being chosen to hold the meetings on the open Chabutra. The testimony of this witness, therefore, does not carry any conviction with me. Another witness is Inder Chand. He is also a member of the Maheshwari community and therefore undoubtedly is a highly interested witness. He has not given the measurement of the Chabutra and his testimony therefore is not at all sufficient to establish the identity of the suit property. PW 4 Narainlal neither says about the possession nor about the measurement of the suit property. PW 5 Shankerlal is also a member of the Maheshwari community and is highly an interested witness. He has given approximate measurement of the Chabutra. He is 73 years old and he has stated that he has been seeing the Chabutra from his childhood His testimony therefore militates against the version given in Ex 1 In Ex 1 as slated earlier two dilapidated apartments are said to have been sold but according to the witness's testimony the Chabutra in question was in existence since hi childhood. It is therefore not understandable how the Chabutra is connected with the property sold under Ex l. PW 6 Ramdayal is also a member of the Maheshwari community. He has given approximate measurement of the Chabutra. The testimony in this behalf is rather vague so as to identify the suit property. Further, when being asked whether there existed two doors on the Chabutra of the defendant's house, he evaded the answer by saying. does not remember (muje dhyan nahi). P.W. 7 Gauri Shanker has stated that under Ex 1 two dilapidated Sale were purchased and the Chabutra was constructed at the place occupied by these two apartments. He has stated that there is entry regarding existence for the construction of the Chabutra. No such entry has been produced. More over this witness has not deposed to the measurements of suit property. It will appear that all the witnesses produced on behalf of the plaintiff are members of the Maheshwari Samaj. The Chabutra is also claimed to be of the Maheshwari Samaj No independent witness of the locality has been produced nor any expert or Gaidar has been produced nor any site plan for establishing the identity of the suit property More over the site inspection note also does not establish the plaintiff's claim. It will appear from the perusal of the site inspection note that there is no access to the suit Chabutra from the plaintiff 's Nohra. On the other hand it appears that two doors of the defendants' house open on the land in dispute and the Chabutra and the doors are old which fact also rebuts the plaintiff's claim. In absence of the satisfactory proof of the identity and further in absence of cogent evidence in support of the plaintiff's claim it is very difficult for me to interfere with the findings of fact of both the courts below. There is absolutely no satisfactory evidence worth the name to either prove the identity of the suit property nor there is any proof as to when this Chabutra in dispute came into existence. The learned Counsel for the appellant tried to assail the findings of the courts below with reference to the testimony of Gauri Shanker and in my view his testimony does not advance the case of the plaintiff any further, so as to warrant interference with the finding of fact on the ground of omission to consider the material evidence. The learned Counsel for the appellant further drew my attention to the statement of D.W. Mool Chand to establish the title of the plaintiff on the suit property. All that Mool Chand has said is that he had gone to the Maheshwari community Panchayat Nohra and there was one Chabutra in the Nohra. This statement cannot be taken to mean that the Chabutra referred to by Moolchand is the disputed Chabutra as alleged in the plaint The Chabutra in dispute as referred to in the plaint is not situated in the Nohra and therefore the testimony of Moolchand DW4 cannot be availed of by the plaintiff to establish the title of the Maheshwari Samaj in respect of the property in dispute. It may be pointed out here that the plaintiff has to succeed on the strength of his own title and he cannot rely on the weakness of proof of the defendant's side to establish their title to the satisfaction of the court. The appeal therefore deserves to be dismissed on this score alone. In this view of the matter I need not go into the question of limitation.

8. In the result, there is no force in this appeal. It is hereby dismissed In the facts and circumstances of the case the parties are left to bear their own costs.


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