BANWARILAL Vs. DATTURAM THROUGH LRS

JUDGEMENT

(1.) The petitioner (Plaintiff) has filed this writ petition under Articles 226 and 227 of the Constitution of India against the order dated 12.8.2008 passed by Additional Civil Judge (Sr.Div.), Jhunjhunu, in Civil Suit No.35 of 2005, whereby his application filed under Section 90 of the Indian Evidence Act, seeking to draw presumption against a patta of 4.10.1948 on the around of it being more than 30 years old, had been rejected.

(2.) Briefly stated facts of the case are that the Plaintiff filed a suit through his registered Attorney Mohan Lai, seeking declaration and mandatory injunction against the defendant. The Plaintiff pleaded in his plaint that he had purchased a plot admeasuring 471.6 sq.yrd. by way of registered sale-deed on 19.9.1984. The dimensions and surroundings whereof were mentioned in para Nos. 1 and 4 of the plaint. His case was that he left 12 ft. land for Mata Mandir and the remaining land he divided in two plots of 54x30 sq.ft. and 54x24.4 sq.ft., and the plot admeasuring 54x30 sq.ft. was encircled with patties and the other plot i.e. 54x24.4 sq.ft. was fenced and thus they both were in his possession. The Plaintiff being out of country, his brother-in-law and also his registered attorney visited the land in question on 18.6.1988 and found that building material was lying and the labour was digging foundation on the plot admeasuring 54x24.4 sq.ft. and on being asked, the defendant refused to stop construction and claimed that the land admeasuring 54x24.4 sq.ft. belonged to him. The Plaintiffs attorney tried to convince him but of no avail, hence the suit.

(3.) The defendant's case before the trial court was that the land in question was his ancestors and that he had sold to the Plaintiff only plot admeasuring 54x30 sq.ft. for sale consideration of Rs.5000/- on 12.6.1986, which was scribed in a stamped paper Exhibit A-2. But so far as land admeasuring 54x24.4 sq.ft. was concerned, it was in defendant's ownership and possession.