Sunil Ambwani - (1.) -O.S. No. 512 of 1971 for restraining the defendants from interfering in his possession over the land indicated by letters 'Aa, Ba, Sa, Da' in the plaint and passage through door shown by letters 'D2', was decreed by the trial court on 20.1.1974. A Civil Appeal No. 47 of 1974, filed by defendant was allowed by Civil Judge, Jalaun at Orai on 29.7.1975. On 6.2.1976, when the second appeal was admitted, the C.P.C. Amendment of 1976 was not notified and thus it was not necessary to frame substantial question of law for admitting the appeal.
(2.) THE plaintiff filed suit with the allegations that land in dispute falls in plot No. 404 corresponding to new plot 430. Shri Arjun Singh, the landlord had orally given the plot to his father for constructing a house, which was built on a portion of the land. THE rest of the land was used for other purposes. THE plaintiff is in continuous occupation of the land, after the death of his father. He keeps his 'ghoora', bricks and cow-dung and also tethers his cattle on the land. THE suit was filed on 15.10.1971.THE plaintiff alleged that defendants opened the door towards east of their house on the land on 18.10.1971. Shri R. K. Raijada, Commissioner visited the spot and found that a door was in existence. The defendants denied the plaint allegations and alleged that the land is part of plot 404. They claimed their possession over the land since long and denied that they had opened any new door on the eastern wall. The land was in their use for keeping their 'ghoora' and for other purposes. They claimed to have perfected their right over the land by adverse possession. The defendants also alleged that a public path way runs in front adjoining the house of the plaintiff and in between the disputed land and the plaintiff's house. The trial court framed issues ; whether land is plaintiff's sahan ('agga')? ; whether the land fall in plot 430 (old plot 404)? ; whether the defendants have become owner by adverse possession? and the relief to which the plaintiff is entitled?
(3.) ON the assessment of evidence, the trial court found that the land falls in plot 404 which according to Ext. 11, is now numbered as plot 430. Shri Arjun Singh P.W. 2 stated that the area of plot 404 is 0.19 decimal and that he had given the entire plot 404 to the plaintiff. Further relying upon the Commissioner's report, the trial court found that 'agga' is always in front of the main road. A person does not keep his 'ghoora' (garbage) on his agga. Arjun Singh had given the land to the father of the plaintiff about 42 years ago. The door 'D2' was a new opening. Ext. A-3 is a compromise in a panchayat in favour of defendant. This document was not admitted by the plaintiff and was not proved by the defendant. The trial court found that the plaintiff is engaged in agriculture on 'batai' (sharing) and that he must be having some place to keep for 'kanda' and 'ghoora'. ON these findings, the trial court held that the disputed land is the extension of the house of the plaintiff and that the defendants were not in adverse possession over the same and decreed the suit on 20.1.1974. The appellate court recorded the finding : (a) the Kistwar map (Ext. 10) contains some misprint of No. 404. In the map, two plots give the number 405. Plot 404 was missing, which makes the situation of plot 404 doubtful. The plot however is located in the confirmed survey map (paper 84 C2/4). Even after presuming that the land in dispute forms part and parcel of plot 404, the respective claims of the parties have to be considered ; (b) In the Commissioner's map (paper 15C-2/3) as well as the admission of the plaintiff's witnesses Lakhan Singh P.W. 2, there is a passage (pagdandi) in front of the house of the plaintiff and thereafter the disputed land. The plaintiff does not have any agricultural land of his own and that he cultivates plot of others on batai (sharing) on payment of cash ; (c) Arjun Singh (P.W. 2) who claims to be Zamindar of the disputed plot admitted that there is nothing in writing about the allotment of the land to the father of the plaintiff, and that in his days only 'tika' used to be done. He however could not say as to how much amount was paid to him in that 'tika' for allotment of land. At the time of allotment Daya Ram's father was not alive and then he said that Daya Ram's father died about 54 years ago. In his examination-in-chief he stated that the land was allotted by him to the father of Daya Ram about 40 or 42 years ago. He admitted the existence of a passage in between houses of Daya Ram and disputed land ; (d) The suit was filed on 15.10.1971. According to plaintiff the door was opened on 18.10.1971. The Commissioner visited the spot on the very day and found that the door was already existing and there are two chabutaras adjoining the door. The door as such could never have been opened at the time given by the plaintiff ; (e) The plaintiff's witnesses have stated that the defendant had their 'agga' on the western side of their house ; and (f) The plaintiff has failed to establish that the disputed door 'D2' was opened recently in the eastern wall. The plaintiff-respondent has thus failed to establish his right and possession over the land in dispute.;