Sunil Ambwani - (1.) -This plaintiff's second appeal admitted on 4.2.1980 without framing any substantial question of law arises out of O.S. No. 39 of 1978 between Raghu Raj Singh v. Idu Khan for permanent injunction restraining the defendants from interfering in plaintiffs possession and user over the disputed land. The suit was decreed by the trial court on 8.7.1978. The Civil Appeal No. 28 of 1979 was allowed on 7.12.1979 and the suit was dismissed.
(2.) BRIEF facts as set out in the plaint are that the plaintiff claimed to be the owner of the house situated on the land shown in the plaint map by the letters 'ABCD'. The house had fallen to ruins. When the plaintiff started making construction, after demolishing the wall towards the north-west portion of the land, and started constructing the house, the defendants raised objections. The defendant and his brothers demolished the constructions on 14.11.1976, made the opening in the wall to pass through, and interfered in the possession of the plaintiff over the land. The defendants had an opening of their house towards the road situate in the east of their house and have no concern and right to open the door and pass through the plaintiffs' land. The defendants denied the plaint allegations and alleged that the plaintiffs are not in possession of the disputed land. It is an appurtenant (agga land) to their house since before the abolition of zamindari, and that their ancestors were in possession of this land. The defendants also pleaded that their door is as old as their house and that the suit is barred by limitation, as the plaintiff has not been in possession over the disputed land within 12 years of the filing of the suit. In the alternative the defendants pleaded to have matured their title by adverse possession over the disputed land. The trial court held that the plaintiff is owner, and in possession of the disputed land, and that the defendants have opened a new door. It further held that the suit is not barred by limitation and that the defendant is not in adverse possession of the disputed land. The suit was thus decreed against the defendant.
(3.) THE appellate court found that the geographical position of the disputed land does not established that it is 'agga' land of the defendants' house as it falls in front of the house of the defendant and his brother. THE plaintiff has not given any cogent evidence that his house existed on the disputed land. THEre is no evidence to show that the plaintiff or his ancestors ever constructed house on the disputed land and that the house had fallen down. THE plaintiff did not construct any boundary wall to enclose the land. THE receipt (Paper No. 29C) filed by the plaintiff to prove that he had taken the land from the zamindar's son does not disclose the plaintiff's father name. Paper No. 27C, copy o'f the khatauni, shows the plaintiff's father's name as Jog Singh son of Sri Kishan Singh, whereas in Paper No. 29C plaintiff's father name is mentioned as Jog Singh son of Sri Kasturi Singh. Further Paper No. 29C is not a patta but only receipt of Rs. 1.25. THE Court Commissioner did not find any sign of ruins of the house or any old foundation. THE plaintiff has not given plot number of the disputed land. THE receipt Paper No. 29C shows that the plot No. 343 was given to plaintiff whereas the lekhpal, produced by the plaintiff, as witness stated that the house is situated in plot No. 256. The appellate court further held that though Paper No. 18C filed by the appellant shows that Patta No. 7 was given by Zamindar, which included plot No. 343, the plaintiff did not mention the plot number and that he had taken land from the Zamindar in his plaint. The disputed land is 31 ft. x 32 ft. and is surrounded by three sides by Gaon Sabha land, and that on the other side the defendants have their land. The plaintiffs' admittedly have got another residential house in the village at some other place. The appellate court thus concluded that the land belongs to Gaon Sabha and is in fact appurtenant to defendants' house. Regarding possession, the appellate court recorded findings that there is no cogent evidence to show that the plaintiffs were in possession of the house within 12 years of the filing of the suit. The plaintiff thus failed to prove their title and possession. The appeal was allowed and the suit was dismissed.;