- (1.) TARUN Agarwala, J. Both The plaintiff and the defendants are claim ing to be the owner and in possession of the house marked by the letters A, B, C, D in plot No. 541 For facility, Rameshwar who had filed suit No. 282 of 1967 will, hereinafter be referred as the plaintiff and Ramji Pandey who had filed suit No. 30 of 1968 would be referred hereinafter as the defendant.
(2.) THE plaintiff Rameshwar filed a suit for permanent injunction alleging that he is the owner of the house marked by the letters A, B, C, D vide a registered sale-deed dated 7. 2. 1956 purchased from Rama Misra and is in possession since then. THE plaintiff alleged that the mud walls shown by letters AB and AE, as indicated in the plaint map, had deteriorated and that the defendants were inter fering in the plaintiffs right in the reconstruction of the said wall. THE plaintiff alleged that the defendants had nothing to do with the said house and the land. Consequently, the suit for permanent injunction was filed restraining the defen dants from interfering with the plaintiffs right in replacing the walls marked by fetters AB and AE as shown in the plaint map. The defendant, Ramji Pandey also filed a suit No. 30 of 1968, for a perma nent injunction, alleging that The house in question does not belong to Rameshwar Mali or to Rama Misra nor had They built any wall for part of The house and that a major portion of the house fell in plot No. 541 which belonged to Bachan Mali who was the original owner and upon his death, the said house came into the share of his widow and his son Kishan Mali who. in turn, sold it To the defendant Ramji Pandey, vide a registered sale-deed dated 22. 11. 1967 and, since then, he is in possession The said defendant in his suit prayed that Rameshwar Mali should be restrained from interfering with his possession over the house in question and further prayed, in the alternative, That in the event he is not found To be in posses sion, in that case, possession be granted to him by the Court. On the basis of the pleadings, various issues were framed and upon the evidence being recorded and after considering the material evidence on record, the trial Court dismissed the suit of Rameshwar Mali, namely, Suit No. 282 of 1967 and decreed the suit No. 30 of 1968 filed by Ramji Pandey. The trial Court held that on the basis of the Commissioner's report, the walls denoted by letters AB and AE fell in plot No. 540 which belonged to Ramji Pandey. Further, the Khasra, exhibit A-1 also indicated that Bachan Mali was the owner of plot No. 541 and Ramji was the owner of plot No. 540 and consequently held that the house belonged to Bachan Mali and upon his death was inherited by his widow and his son Kishan Mali who in turn sold it to Ramji Pandey. The trial Court disbelieved the version of the plaintiff Rameshwar Mali and held that the surrender deed dated 29. 7. 1948 executed by Kishan Mali, being unstamped, was not a reliable docu ment and that the said document could easily be manufactured Further, The sale-deed dated 18th March, 1950 executed by Bhoj Raj Misra in favour of Rama Misra being an unregistered document which could not be relied upon and that the said document could also be manufactured and, on these two counts, the plaintiffs case was thrown out.
(3.) THE plaintiff, Rameshwar Mali, filed two appeals which were allowed by the lower appellate Court and the judgment of THE trial Court was set aside and suit No. 282 of 1967 of Rameshwar Mali, the plaintiff, was decreed and a permanent injunction was issued restraining Ramji Pandey from interfering with the plaintiffs right in replacing THE walls AB and AE as shown in THE plaint map. THE appellate Court, after considering the matter and after reappraising the evidence, held That the Commissioner's report was not correct and that the surrender deed executed by Kishan Mali in favour of Bhoj Raj as well as the sale-deed dated 18. 3. 1950 executed by Bhoj Raj in favour of Rama Mishra were genuine documents and was liable to be relied upon and was admissible in evidence. THE appellate Court found that Bachan Mali was only an occupant of the house in question and that Kishan Mali had surrendered his occupancy right whole issuing the surrender deed. THE appellate Court fortified its finding on the strength of the endorsement made by Kishan Mali as an attesting witness in the sale-deed dated 18. 3. 1950 which was executed by Bhoj raj in favour of Rama Mishra and concluded that, if Kishan Mali, was the owner of the house in question, he would not have placed his signatures in the sale-deed in respect of the same house, as an attesting witness THE lower appellate Court further concluded that THE sale-deed of 1956 executed by Rama Misra in favour of the plaintiff, Rameshwar Mali, was a genu ine document and, since then, the plaintiff was in possession of the house which was fortified by a further finding that Rameshwar Mali, the plaintiff, had applied for reconstruction of the house before the Town Area Committee in which permission was granted by the Chairman, by an order dated 20. 7. 1957. In view of the finding that the sale-deed in favour of the plaintiff appeared to be genuine and that the plaintiff had been in possession continuously THE suit of the plaintiff, Rameshwar Mali was decreed and the suit of the defendant was dismissed. Aggrieved, the defendant, Ramji Pandey has filed two appeals before this Hon'ble Court which have been clubbed together and are being heard and decided together.;