GUPTA, J. - (1.) THIS appeal has been filed by the plaintiff against the judgment and decree of the learned Lower Appellate Court, District Judge, Balotra dated 28. 5. 84, accepting the appeal against the judgment and decree of the learned Munsiff Magistrate, Barmer dated 19. 12. 80, and thereby dismissing the plaintiff's suit for declaration and possession.
(2.) THE facts of the case are, that on 18. 7. 75, the plaintiff filed the present suit, alleging inter-alia, that the property described in para-1 of the plaint belongs to the plaintiff, which has been shown by marks "a B C D E F G" in the site plan, and is in possession of the plaintiff for last 30 years. According to the plaintiff, four rooms are there on the property. Out of this, the portion marked by red colour was on rent with Joga Ram, and a fire broke out. Likewise, a body of the motor vehicle of the plaintiff did lie there, and the property is being used for storing fodder, and tethering cattle. It was also pleaded, that on the portion marked by "f E D", stone slabs were erected, while fencing was there in some portion of "a B C", and in some portion, brick wall was erected, which has got dilapidated, and remainants are there. It is then pleaded, that on 30. 4. 74, the defendants committed trespass over the land, for which, FIR was lodged in Police Station on 30. 4. 72, and an application was also filed to Dy. S. P. on 1. 5. 72, whereupon challan was filed under Section 145 Cr. P. C. on 2. 5. 72, and the land in dispute, being "a B E F" was attached by the S. D. O. on 5. 5. 72. However, thereafter, the learned S. D. O. found himself to be not in a position to decide the question of possession, and directed the parties to have their rights adjudicated by civil court. Hence the suit has been filed. THE land is in attachment, but since is under illegal possession of the defendants, prayer for possession has also been made. Inter-alia with these averments, a decree for declaration of title, and possession has been prayed for. The defendants filed a collective written-statement on 8. 4. 76, contesting the suit, denying the land to be belonging to, and to be in possession of the plaintiff, specially "a B E F". It was also pleaded, that this disputed land is in possession of defendant No. 1, who has purchased it by registered sale deed dated 21. 6. 66, from one Purkha Ram, for a consideration of Rs. 800/-, and since then is continuing in possession, where he has erected a room, one Jhumpa, and a Chapara, and on two sides, has erected boundary wall of stone slabs. According to the defendant, prior to it, since 6. 2. 56, the land was in possession of the seller, Purkha Ram, who had purchased three plots, including the disputed plot, from erstwhile Jagirdar Khum Singh, vide registered sale deed dated 6. 2. 56. Copies of the two sale deeds were produced. It was then pleaded, that the Municipality, Barmer on 24. 6. 57, for raising construction on the disputed plot and two other plots, wherein this plot was shown as plot No. 7. Thus, the plot was not in possession of the plaintiff; plot No. 6 however was lying open in the east of the disputed plot, whereupon of course, the plaintiff has illegally taken possession, and therefore, for the last one year, he is trying to grab the defendant's land as well. According to the defendant, since he is continuing in possession over the land in dispute since 21. 6. 66, there is no question of his having committed trespass on 30. 4. 72. Lodging of the FIR and initiation of 145 proceedings of course was admitted, but then, it was pleaded, that thereby neither the plaintiff's title, nor possession is established, rather the land was found to be in possession of the defendant. It was then pleaded, that at the time of attachment, since the defendant was living in the property he was not dispossessed. Then in additional pleas, it was pleaded, that the property in question was in possession of the defendant's predecessor Purkha Ram, from 6. 2. 56 to 20. 6. 66, and since 21. 6. 66 it is continuing in his possession. Thus, the plaintiff had never been in possession for the last 20 years, and since the defendant and his predecessor were in adverse possession, the suit is barred by time. Then it was pleaded, that the S. D. O. , in his order dated 5. 5. 75, has mentioned that the Municipality claims the land to be belonging to itself, as such, the Municipality is a necessary party, and compensatory costs were also claimed. Learned trial Court framed as many as 8 issues. Issue No. 1 was, as to whether the disputed plot is of the ownership of the plaintiff. Issue No. 2 was, as to whether the disputed plot is in plaintiff's possession for last 30 years, and issue No. 3 was about the defendant having trespassed on 30. 4. 72. Then issue No. 4 was about plaintiff's entitlement to decree for possession, issue No. 5 was about the suit being barred by time in view of the plea taken in para-1 of the additional pleas. Then issue No. 6 was about Municipality being necessary party. Then Issue No. 7 was about defendants' entitlement to compensatory costs. While issue No. 8 was about relief. The parties led their evidence, and after completing the trial, the learned trial Court vide judgment and decree dated 19. 12. 80, decreed the plaintiff's suit. Deciding issue No. 1, it was held by the learned trial Court, that the plaintiff's case is on the basis of possessory title, while the defendant claimed on the basis of documentary title of purchase. In this background, considering the evidence of the parties, it was considered, that the motor body of the plaintiff is lying there, which has been admitted by D. W. 7 also, in the manner, that half portion thereof is on the land in question. Then this D. W. 7 has also admitted, that it is lying in the same condition since before the death of her husband, and that her husband died in Samvat 2023. This Nenu D. W. 7 is the widow of the seller of the defendant. Thus, the learned trial Court found, that plaintiff is in possession of the land for last more than 12 years, and thus, has possessory title. Then considering the defendants' case, it was considered, that defendant had purchased the land vide Ex. A-2, and D. W. 7 Nenu has clearly deposed, that when her husband sold the land to defendant, land was lying open, and was not in their possession, though fencing was there. Then D. W. 6 has deposed, that he did not see possession of Purkha on the land in question. Thus, it is not established, that the land was in possession of Purkha. Then Ex. A-2 was considered, and it was found, that the land sold was 32 gkfk north south, and 22 gkfk east west, while if plot No. 4 and 7 are both held to be of Purkha, it exceeds 32 gkfk north south. Then it was considered, that in Ex. 14, plot No. 4 and 5 can be said to be of Purkha Ram, but not plot No. 7, as according to Purkha Ram's wife, Nenu (D. W. 7), out of her plots, she has one plot, one has been sold to Taja Ram, and this third disputed plot, in the opinion of the learned trial court, does not fall within the measurement 32 gkfk north south. Then it was noticed, that from Ex. A-1 if plot No. 4 and 7 are taken to be of Purkha, then Ex. A-2 is wrong, as the total land, north south, is 32 gkfk. It was also considered, that according to D. W. 6, the house of Purkha is towards north of Punma, and he did not see possession of Purkha, on the plot of Punma (the land in dispute ). While on the other hand, D. W. 5 Gulab Singh, has proved Ex. 9 to be the site plan issued by the Municipality, and therein, one big plot of Motiram is shown to be situated towards south of Taja Ram. Thus, the issue was decided in favour of the plaintiff. Then deciding issue No. 2 it was considered, that the plaintiff has deposed, that in 1956, when the roads were laid down, his Bara was divided into three parts, and some parts went in the road. Then P. W. 3 & 4 have deposed to have erected stone slabs at the behest of the plaintiff. P. W. 4 has also deposed the plot to be 60-70 ft. east west. Then D. W. 5 Gulab Singh has also established plaintiff's possession vide Ex. 9. Then after considering the other defense evidence also, it was found that it is not established that the plot was in possession of the defendants, rather the plaintiff's possession is established. Deciding issue No. 3, it was found, that it cannot be believed, that Punma was in possession since before 30. 4. 72. Then issue No. 4 was decided in favour of the plaintiff in view of the decision of issue No. 1, 2 and 3. Regarding issue No. 5, it was found, that the suit could be filed within 12 years of dispossession. The plaintiff has lodged the report with police in 1972, and according to the orders of the S. D. O. , the suit has been filed, which cannot be said to be time barred. Reliance was placed in the judgment of Hon'ble the Supreme Court, in Somnath Berman vs. Dr. S. P. Raju & Anr. , reported in AIR 1970 SC 846. Then issue No. 6, about Municipality being necessary party was also decided against the defendant, obviously in issue No. 7, the defendant was not held entitled to compensatory costs. Consequently, the suit was decreed as above. The learned District Judge made certain observations, about the conduct of the proceedings of the learned trial Court, and directed a report to be submitted to the Registrar, Rajasthan High Court, in inspecting the site and not preparing the note, then belatedly giving the judgment after hearing the arguments and so on. However, deciding on merits, it was held, that admittedly, land earlier belong to Khum Singh, Jagirdar, who had let it out to various other persons. Jagirdari was resumed in the year 1955-56, and some persons continued to be in illegal possession, while some persons purchased the land from Jagirdar, remaining land vested in Municipality. Then it was found, that it appears from Ex. 11, being letter of the Collector dated 20. 9. 61, that after resumption, Municipality established a planned colony in the name of Nehru Nagar, and in that process, prepared a survey plans. Then it was noticed, that in Ex. 12, the land marked by red colour was shown to be in possession of Motiram (the plaintiff), in east whereof was the possession of Navla Mahetar, and in the east of Navla Mahetar possession of Purkha Ram was shown, and the possession of Purkha Ram was also shown towards the south of the land in possession of Motiram. This shows, that there was no uniformity in the land, and in order to establish a planned colony, the Municipality did plotting, and marked roads and lanes, and allotted plots to the persons in accordance with their possession, which appears from Ex. 5, being letter of the Municipality to Motiram, calling him upon to appear on 13. 3. 79 at 10 AM for allotting plot. Then it was observed, that in rent note Ex. 1 dated 9. 1. 67, there is no reference of the plot, nor boundaries are mentioned. Then in Ex. 2, four house and Baras of Motiram have been shown, and it is not clear, as to, to which property, the rent note related. Then Ex. 3 is the notice to Motiram, for encroachment on the municipal road. Similar notice was also given vide Ex. 4 regarding raising of construction. Then vide Ex. 6, the plaintiff was directed to remove encroachment. Then Ex. 9 is the municipality's approved plan. Then by collective reading of x. 9, Ex. 2, Ex. A-1 and Ex. A-6, it was observed, that it cannot be accepted, that the disputed land was in possession of the plaintiff. It was then found, that the sanction of construction does not relate to land in question, but relates to the portion "a B C D", as therein 20 ft. wide way has been shown in the east, as the measurements of plot situated in the east of the way tallies with the dimensions given in Ex. 2. Then after discussing other documents also, it was concluded, that from the documents and evidence produced by the plaintiff, the plaintiff has not been able to connect them with the property in question, rather the learned trial Court has not properly considered these documents, nor has properly appreciated them. Then discussing the documents of the defendant, it was found, that the defendant had purchased the property vide Ex. A-2, wherein measurements have been given to be 32 gkfk north south, which is ordinarily equal to 48 ft. while the plot is 58 ft. Then east west does show to be 22 gkfk, which comes around 33 ft. while the land is 32 ft. 9 inch on one side and 33 ft. 7 inch on the other side. Then in the east, the land of Jagirdar Khum Singh has been shown, which is the same land, which is in possession of Motiram, plaintiff. Thus, the plaintiff did not purchase the land from Khum Singh, rather plaintiff was tenant earlier, and continued in possession, and then in west, house of Navaram Mehtar has been shown. Then in north, 10 ft. lane has been shown, and in the south public way is shown, which is there. With these recapitulations, the question was posed, as to whether the defendants' predecessor also purchased this very land, and it was considered, that in the sale deed dated 5. 2. 55, Purkha Ram has purchased 66 gkfk x 32 gkfk land, but then, it is clear, that in view of this land measuring 32 x 66 gkfk, Municipality must have given three plots. In the sale deed of 6. 2. 56, public way shown in the north, and on the other three sides, Khum Singh's land has been shown, while from Ex. 13, it is clear, that therein Purkha Ram's land has been shown in the east of land of Navaram Mehtar, and therefore, that is the land, which is purchased by Purkha Ram, and it is more probable that the Municipality would allot plots towards the east of Navaram Mehtar only, as far as possible to Purkha Ram, and therefore, it is more probable that out of the three allotted plots, the plot in question was allotted to Purkha Ram, and Purkha Ram obtained permission for construction in the year 1957, which was granted in respect of the plots No. 4, 5 and 7, which plot No. 7 is the plot in dispute, and that if Purkha Ram would not have been allotted the land, he would not have been given permission to raise construction. Thus, it was found, that from the documents it is established, that the defendant has title over the land. Then discussing the oral evidence of the plaintiff, it was found, that simply because two wheels of the motor body are on the vacant land, the land cannot be said to be in possession of the plaintiff. Then Nenu's statements had been referred about having purchased the land from Khum Singh, and then having sold one plot to Taja Ram, and having sold the disputed land to the defendant. Thus, on the basis of volume of evidence, it was found that plaintiff has failed to establish his possession over the land for last 20 years, or about the defendant having trespassed on 30. 4. 72, and thus, all the other issues were decided against the plaintiff, and the suit was dismissed.
(3.) THIS appeal was admitted on 28. 11. 84 by framing the following substantial questions of law: " (1) Whether the learned District Judge was in error in holding that the suit filed by the plaintiff on the basis of mere possession without having a title as purchaser from the Jagirdar as tenant was not maintainable after the period of six months under the provisions of Specific Relief Act. (2) Whether in the circumstances of the case, the learned District Judge was right in reversing the findings of the learned trial Court without considering the evidence of the defendants witnesses D. W. 2, D. W. 6 and D. W. 7 relating to possession and the document Ex. A-2 and the sale-deed dated 6. 2. 56 relating to measurement of the property in dispute. " Arguing the appeal, it was contended that the plaintiff can very well maintain the suit for possession on the basis of possessory title during any time within a period of 12 years of his dispossession. It was wrong on the part of the learned lower Appellate Court to assume that after expiry of six months, the plaintiff cannot maintain the suit unless he has acquired a documentary title. It is contended that if the suit were to be filed within six months, then all that is required to be established by the plaintiff is, that he was in possession irrespective of any title, but then, if the suit is filed after six months, the plaintiff is also required to establish his right to possession. In that view of the matter, the question required to be seen is, as to whether the plaintiff has acquired possessory title, and thus, the question No. 1 is required to be answered in favour of the appellant. Then arguing the question No. 2, it was contended that apart from the plaintiff's evidence, on a bare reading of statement of D. W. 2, 5 and 7 in conjunction with Ex. A-2 and Ex. A-5, it is clear that the plaintiff's suit could not be dismissed. Elaborating the arguments, it was contended that of course, the boundaries given in Ex. A-2, being the sale deed in favour of the defendant by Purkha Ram do relate to the land in question, but then admittedly, the defendant's case is, that he has come into possession only by purchase from Purkha Ram, and admittedly Purkha Ram has purchased the land vide Ex. A-6, and had come into possession thereby only. In that background, according to the learned counsel for the appellant, when it is clear, that the land in question did not form part of the land sold vide Ex. A-6 by Khum Singh to Purkha Ram on 6. 2. 56, simply because Purkha Ram executed sale deed in favour of the defendant, being Ex. A-2, it cannot be said that the land was in possession of the defendant, or Purkha Ram, so as to non-suit the plaintiff. In this regard, it was submitted that a look at the sale deed Ex. A-6 does show that the total land sold was north south 32 gkfk, and east west 66 gkfk. It is contended that in this Ex. A-6, single boundary description is given, with respect to the entire land viz. , having opening in the north, and on the other three sides, the land of the seller is shown to be existing. In that view of the matter, the land is required to be taken to be one Chunk, while the land covered by Ex. A-2 (land in question) does not fall within the description given in Ex. A-6, inasmuch as, in Ex. A-2, the description given in Ex. A-6, inasmuch as, in Ex. A-2, the description given is that in the north, there is a 10 ft. wide lane, and thereafter, the seller's land, while in the south, there is public way. Then in the west land of Mehtar Navaram has been shown. Thus, according to this document, towards the north of the land in question, is 10 ft. lane, and thereafter seller's own land, and the land sold by this document also measures 32 gkfk north south. It was contended that, thus, according to this description, the land of Purkha Ram should be more than 64 gkfk north south, to the extent of 10 ft. lane, and then, it should be 66 gkfk east west either, as in the site plan, Ex. A-1, plot No. 4 and 5 are said to be of Purkha Ram, out of which, plot No. 5 has been sold to Raja Ram, and thus, 44 gkfk land is covered by plot No. 4 and 5, with the result, that the land covered by Ex. A-2 is not at all established to be forming part of the land, covered by Ex. A-6. Reliance was also placed on the statement of Nenu, D. W. 7, who is none-else than the wife of Purkha Ram, the person in whose favour, Ex. A-6 was executed, and who had executed Ex. A-2, and she has clearly deposed, that one plot was sold earlier (to Taja Ram), one is retained by her, and one was sold to Punma. It was also pointed out, that the evidence of the defendants' side is seriously discrepant, so much so, that D. W. 3, far beyond the defendant himself, has deposed that when he was inducted as tenant,purkha Ram was living therein, which is nobody's case. It was then contended, that when the land is described in Ex. A-6 by measurements and boundaries, both, it was not open to the learned trial Court to assume that in view of that plot, Municipality may have allotted three plots, out of which, one may be of plot No. 7, when this plot No. 7 does not fit in Ex. A-6, and it is nobody's case, that in view of the land of Ex. A-6, and it is nobody's case, that in view of the land of Ex. A-6, the land in question was allotted to Purkha Ram. Thus, since the defendant has trespassed over the land, only on 30. 4. 72, and when admittedly, the body of the plaintiff's motor vehicle is lying there on the land in question as well, it is clear that the plaintiff was, and is in possession of the land, and as admitted by D. W. 7, it is lying before since before 2023, the suit could not be dismissed. On the other hand, learned counsel for the respondent supported the impugned judgment. It was contended that in Ex. A-6, three plots had been sold, measuring 32 x 66 gkfk, and it is not the case, that one rectangle chunk was sold, and that plot No. 4, 5 and 7 collectively measure 32 x 66 gkfk, and therefore, Ex. A-2 is perfectly valid, and plaintiff has no case. It was then pointed out that plaintiff, P. W. 2, claims on the basis of Ex. 9, to the effect, that thereby, he sought permission for construction, and then defendant had trespassed, while a look at Ex. 9 shows, that it is dated 11. 9. 74. Then plaintiff has also deposed that he did not ask for permission regarding the land of Joga Ram, as Municipality was treating it to be its own land. Then he has also deposed that in Ex. 9, Navaram has been shown to be western neighbour, while it is not shown in Ex. 9. Thus, it is clear that defendant has not trespassed over the land, with respect to which, permission was sought vide Ex. 9. Likewise, significantly, the plaintiff has not deposed the permissions of the defendant, being Ex. A-1, and Ex. A-4, to be a forgery, rather he has deposed that Purkha Ram was granted permission, with respect to northern land, and not with respect to his land, and that he has not bound by the plan, that may have been sanctioned to the defendant. Then the statement of P. W. 1, Ranjeet Singh has been referred, who has deposed that Purkha Ram was given land by moving forward and backward. Then referring to statements of P. W. 3 and 4, it was sought to be contended, that from a reading thereof, it is clear that they cannot be believed to have erected stone slabs, as sought to be deposed by them. Then reliability of P. W. 5 was also contended, by submitting that he deposes the existence of three oras only, while according to the plaintiff, there are four oras, apart from the fact, that there is discrepancy in the description of boundary as deposed by him. Then the statement of P. W. 7 was referred, as he has deposed that before giving permission, the site was inspected, and that the plaintiff did not ask for any permission. Thus, it was contended that the permission is not with respect to plot No. 7. Then regarding D. W. 6, for whom the learned counsel for the appellant had contended, that he has deposed that Purkha Ram was not in possession of the land of Punma, according to learned counsel for the respondent, this witness has deposed that he had no occasion to go on the land before it being purchased by Punma. Thus, it was sought to be contended by learned counsel for the respondent, that this witness does not negative the possession of the defendant. Then D. W. 2 was referred, who is the neighbour of Taja Ram, and has deposed that he never saw the possession of Khum Singh. Then, by reading the statement of D. W. 7, it was contended, that she has deposed that there was a fencing, which obviously, was errected by Purkha Ram, and to this witness no question was asked about Ex. A-1 and A-4. Likewise, the statement of D. W. 4 was read, to contend, that he has proved Ex. A-1 and A-4, whereby permission to raise construction was granted to Purkha Ram with respect to the land in dispute. Next contention raised by the learned counsel is, that the submissions are made by the learned counsel for the appellant on the basis of the defendant's documents, while the established legal position is, that the plaintiff has to stand on his own legs, and cannot take advantage of the weakness of the defendant, even if there be any. In this regard learned counsel relied upon the judgment of Hon'ble the Supreme Court, in Brahma Nand Puri vs. Neki Puri, reported in 1965 SC 1506, another judgment of Madras High Court, in Enose vs. Thankappan, reported in 1999 AIHC-1469, and Shyama Charan Rout vs. Satyan Jena, reported in 1999 AIHC-3013. Learned counsel then submitted, that the plaintiff has not proved his possession over the land, and that Ex. 9 does not relate to the property in question, but is related to another property. Thus, since the plaintiff has not been able to prove his case, irrespective of any weakness of the defendant, even if there be any, the suit was required to be dismissed, and has rightly been dismissed. ;