RAMDULARE S/O SONAI Vs. RAJBHAN AHIR AND OTHERS

JUDGEMENT

(1.) DEFENDANT who lost before lower appellate Court has filed this appeal. It was admitted on 7 -9 -1987 on following substantial question of law:

(2.) BEFORE considering the contention of the parties, it is necessary to state the facts of the case. Ramavtar filed suit on 18 -8 -1977 for declaration, permanent injunction. It is pleaded in the plaint that the land Survey No. 166 area 1.02 Decimal of village Billora Tola was converted in new No. 170 area 1.02 Decimal, belonged to Smt. Jhurri wife of late Gappo Ahir, as per settlement of land records of Samvat 1982. After 4 to 5 year of the settlement, Mst. Jhurri entered into Natra marriage to one Sonai son of Banarsi of village Billora Tola, as per customs. But she remains in possession of the land. Defendant Ram Dulare born from the wedlock of Sonai and Jhurri. Sonai and Jhurri both died before 35 and 20 years respectively before of filing of the suit. Defendant alone remained in possession of the land. The defendant was in need of money so he sold the suit land to plaintiff on 8 -1 -1961 by an ordinary document for a consideration of Rs. 150/ -, and after receiving consideration the possession of the land was delivered to the plaintiff. The plaintiff after purchase of the land constructed four rooms residential house on the land, sink a well, planted mango and guava trees and also improved the land. Because of this development, price of the land increased. The plaintiff developed the land and remained in possession of the land. He has also paid land revenue. Plaintiff being illiterate person did not take care that the land be got mutated in his name but his possession was duly recorded in the revenue records. Before five to six years (of filing suit), there was an exercise for revision of the land records. On the request of plaintiff, defendant consented before the authorities for the transfer of the name and accordingly on 14 -12 -1971, the plaintiffs name was mutated which was also duly verified. The plaintiff and defendant both are close relation but because of the instigation of some villagers, who were having enmity with the plaintiff, the defendant filed an appeal against the order of mutation dated 14 -12 -1971 before the Collector. The Collector, vide order dated 4 -7 -1977 cancelled the order of mutation dated 14 -12 -1971. Thereafter defendant started to claim his rights in the land and on 15 -8 -1977 tried to reap the crop sown by the plaintiff. The defendant has no right, title or possession over the land and the plaintiff is in continuous, peaceful possession of the land since last 16 years, which is adverse to the defendant who had alienated the land in favour of the plaintiff. Though the Saledeed dated 8 -1 -1961 is unregistered but the plaintiffs possession is for more than 12 years over the land and has acquired right in the suit land by way of adverse possession. It is also stated by the plaintiff in para 12. B of the plaint that the defendant is bound by his admission in respect of Saledeed dated 8 -1 -1961 in mutation proceedings and also having knowledge in respect of four constructed houses; well; the planted trees and is stopped from challenging the title of the plaintiff. On the aforesaid grounds the suit was filed.

(3.) THE trial Court framed 6 issues in the case. The parties examined the witnesses. Plaintiff examined himself as DW -1 - PW -2 Govind Singh - attesting witness of saledeed, PW -3 Samwat Singh in respect of possession. The defendant examined himself as DW -1, DW -2 Raghuram, DW -3 Mangal in respect of dispossession of the defendant after issuance of temporary injunction order in favour of the plaintiff. The trial Court after appreciating the evidence recorded following findings in the case: -