- (1.) This second appeal has been filed challenging the judgment and decree dated 22.11.2001 passed by the first Appellate Court. The facts giving rise to the present appeal are that a suit of permanent injunction was filed by the plaintiff with the allegation that the defendants may be restrained to interfere into the possession of the plaintiff and they may not demolish the construction standing thereon and they may also not cut the trees. It was further alleged that the plaintiff was the owner of the disputed land since before the date of abolition of zamindari and on the western side of the disputed land, a sitting room (baithaka) was existing and the eastern side of the disputed land was lying vacant and he was using the said land for the purposes of putting his house hold and agricultural articles and equipments and his family members were also using it for sitting purposes. The said land has settled with him under section 9 of the U.P.Z.A. and L.R. Act (for short the 'Act'). The plaintiff has also planted some trees on the land in question. The defendants are trying to take forcible possession of the said construction and land and want to demolish the constructions and cut the trees. The defendants No. 1 and 4 filed separate written statements and they denied the map annexed with the suit and it was stated that the correct map has not been filed alongwith the suit. The land in dispute belong to Ganga Prasad Singh and Ram Prasad Singh, who were residents of the same village and their House, sahan, compound, saria and sitting room (baithaka) were situated on the eastern side of the plaintiff. The number of the said house was 95 and they died issueless and thereafter defendant No. 1, who was their real niece (bhanji) and was living alongwith them since long time, became the owner of the said property by virtue of a registered Will deed executed in her favour on 23.9.1985. The defendant No. 1 sold the northern portion of the land to Devi Prasad, southern portion of the land to Ramjeet and Ram Sahai and eastern portion of the land to Sukhai Kahar by means of three separate sale-deeds dated 19.7.1970. The defendant No. 1 also sold the disputed land to Subedar, defendant No. 4 by means of registered sale-deed dated 31.8.1990 and gave possession. On the eastern side of the disputed land bamboo shrub (banskot) and trees were existing, which were sold by the registered sale-deed dated 4.1.1990 in favour of defendant No. 4 and he was in possession after the execution of the sale-deed on the aforesaid land. The plaintiff was having no concern with the aforesaid land. In the map, which has been filed alongwith the suit, correct position of the disputed property has not been shown and where house of Keshav Ram has been shown, in fact the said house belongs to Ramjeet and Ram Sahai, which was sold to them by defendant No. 1 and after the pathway on the eastern side sold to Sukhai, has also not been shown in the map. On the southern side of the disputed land house of defendant No. 4 and the old house of his father Ram Dev is existing, but the said house has also not been shown in the map. Along with the written statement, the correct map was filed and it was averred that the disputed property is situated in front of the house of the plaintiff and the plaintiff wanted to purchase the said property, but it was sold to defendant No. 4 and on this score, the suit has been filed with mala fide intention.
(2.) The Trial Court upon pleadings of the parties framed necessary issues and thereafter evidence was led before the Trial Court, The Trial Court after considering the evidence of P.Ws. 1 and 2 found that their evidence does not inspire confidence and as such did not place reliance upon their evidence. The Trial Court thereafter considered the evidence of D.Ws. 1, 2, 3 and 4 and found that there was consistency in the evidence of the defence witnesses and proceeded to dismiss the suit finding that the evidence of P.Ws. 1 and 2 does not inspire confidence and the suit was filed after the sale-deeds were executed and it was found that feeling annoyed with the fact that plaintiff failed to purchase the said land, proceeded to file the suit for permanent injunction. The Trial Court also found that in the map annexed alongwith the suit, correct position of the spot was not indicated and alongwith the written statement the correct map was annexed and various sale-deeds were executed by defendant No. 1 in favour of Devi Prasad, Ramjeet, Ram Sahai, Sukhai and defendant No. 4. The sale-deeds in respect of three persons were executed on 19.7.1990, whereas in favour of defendant No. 4 was executed on 31.8.1990 and in respect of Bamboo shrub and trees was executed on 4.1.1990. The Trial Court found that it was very natural on the part of the plaintiff to institute the suit after having failed to purchase the property and when it came to his knowledge that property has been sold on 31.8.1990, he proceeded to institute the suit. The commissioner report was rejected by the Trial Court finding that there was huge discrepancy and cuttings in the said report and the same was prepared with a view to favour plaintiff, therefore, it cannot be made the basis for allowing the claim of the plaintiff. The Appellate Court while appreciating the controversy between the parties, came to the conclusion that the commissioner report could not have been rejected and ought to have been considered in the light of the evidence on record.
(3.) It was the very specific case of the defendants from the very beginning that spot position has not been correctly shown in the map annexed alongwith the plaint and the commissioner while preparing the report reiterated the same map and almost in conformity with the site plan annexed with the plaint. The witnesses, who have deposed in the Court below have very categorically stated that the spot position was altogether different and the road was existing after saria of the plaintiff on the western side. D.W. 3, Sukhai and P.W. 2, Ram Kumar also proved the sale-deeds executed in their favour. From the entire evidence on record and even the evidence of P.Ws.1 and 2 goes to indicate that the existence of the road has been admitted after the saria of the plaintiff. All the witnesses have admitted that the disputed land belong to Ganga Prasad Singh and Ram Prasad Singh and they died issueless and after their death, the property in question was sold to four persons. Looking to the discrepancy in the oral evidence and the commissioner map, the map of the commissioner was rejected and, therefore, in the opinion of the Court, the Appellate Court committed illegality in relying upon the said map thereby decreeing the suit. The Trial Court appreciated the entire evidence in length and then found that evidence of P.W. 2 does not inspire confidence, whereas P.W. 1 has not come with correct facts and correct, spot position. In the background of the' entire facts and the evidence on record, I am of the view that the order passed by the Appellate Court cannot be sustained in law and it deserves to be set aside. The appeal is accordingly allowed and the judgment and decree dated 22.11.2001 passed by the Appellate Court is hereby set aside and the judgment and decree dated 30.10.1996 passed by the Trial Court is confirmed.;