M.L.JOSHI, J. - (1.) THE plaintiff appellant Laxminarain filed a suit on behalf of the Maheshwari Samaj, Kuchaman, in the representative capacity under Order 1 Rule 8 CPC for possession of a Chabutra measuring 19 feet north -south and 8 feet east -west on the allegation that the defendant -respondents had taken Illegal possession of the Chabutra on 18.11.1962 by raising walls on the eastern ends of the Chabutra. According to the plaint allegation, the disputed Chabutra was situated on the south west corner of the house belonging to the Maheshwari Samaj and was purchased from one Chandra Paharia and they were in possession of the Chabutra as owner since years.
(2.) THE defendants Nos. 1 and 2 in their written statement denied the ownership of the Maheshwari Samaj in respect of the disputed land alleged to have been occupied by Chabutra and also the ownership of the house -cum -nohra. They pleaded that the land in question is their duly purchased property and their possession is authorised and old one and it was incorrect to say that they had unauthorisedly taken possession of the land in dispute. They also alleged that the sale -deed appended with the plaint was forged one. Some other pleas were taken in the written statement but they need no mention as they are hot material for the diposal of this appeal. The main point which was seriously contested by the party in the courts below was whether the Chabutra measuring 18' x 8' on the south -east corner of the house mentioned in para 2 of the plaint belonged to the Maheshwri Samaj of Kuchaman City and had been in its possession. This point was the subject -matter of the issue No. 1. In support of the issue the plaintiff produced Ex. 1 an unregistered sale -deed, and Ex 2, an entry in Khata Bahi showing that two apartment were purchased from Chandra Paharia under a sale -deed, and seven oral witnesses. The trial court raised presumption in regard to the execution of Ex. 1 by Chandra Paharia under Section 90 of the Indian Evidence Act. It, however, observed that as there was no mention of the boundaries nor there is measurement in the sale -deed so it is difficult to say that this sale deed related to the land in dispute. The trial court further made reference to its site inspection note which is a detailed one and is on the file. On the basis of the appreciation of evidence coupled with site inspection note it came to observe that the land in dispute is the part and parcel of the two underground apartments of the defendants' house, as doors of these apartments open in the defendants' house although the apartments are now in dilapidated condition having no roof. As regards the evidence produced on behalf of the plaintiff the trial court discarded their testimony on the ground that they belonged to Maheshwari community and are highly interested The trial court further made a pointed reference to the testimony of P W. 6 Ramdayal and P. W. 5 Shankerlal P W, 6. Ramdayal is 80 years whereas P W. 5 Shankerlal is 73 years. These witnesses have deposed that they had been seeing the Chabutra since their childhood. The sale -deed Ex 1 is of 1906 i. e. 58 year prior to the statements of witnesses The trial court, therefore, did not believe the plaintiff's version on the ground that if the Chabutra had been in existence as per the testimony of P W. 5 and P. W. 6, how there could be a mention of two apartments in a dilapidated condition. The trial court, therefore, came to the conclusion that there was no Chabutra at the time of the execution of Ex. 1. It further came to hold that there was no evidence on the record to show that the Chabutra was subsequently constructed. The trial court after disbelieving the plaintiff's witnesses has referred to the evidence of D W 3 Ramjeevan, DW 5 Abdul Rehman, DW 2 Rampal, DW 6 Kanhaiyalal, DW 7 Pannalal and DW 8 Nathmal. These witnesses have deposed to the possession of the defendant since they purchased the land in dispute under Ex P. 1. The trial court after appreciation of evidence of both the parties did not accept that the plaintiffs were the owners and in possession of the land in dispute and that the defendants have illegally occupied the land in dispute as alleged in the plaint. The trial court further held that the suit was barred by limitation as the plaintiffs have not been able to prove that they were dispossessed within 12 years of the filing of the suit.
(3.) ON appeal, the learned District Judge concurred with the findings of the trial court to the effect that the land in dispute has not been established to be covered by Ex1 as the same neither contained boundaries of the disputed land nor does it contain its measurements nor its area It also agreed that there was no Chabutra in existence at the time of the sale -deed Ex. 1.The first appellate court, therefore in the absence of the specification of the boundaries in land comprised in the sale -deed Ex. 1 and also in the absence of measurements held that it was not established that the land is covered by Ex, 1. The appellate court further came to hold that there was no oral evidence to show as to when the disputed Chabutra came to be bulit upon. It was, therefore, of the view that the identity of the land could not be established by the plaintiff on the basis of Ex. 1. As regards Ex 2 the appellate court said that it was merely a memorandum in the Bahi, and has no evidentiary value. More over it does not establish the identity as to the extent of the land. The appellate court further said that the entry like Ex. 2 could be made at any time and therefore, Exs. I and 2 were not sufficient to establish the case of the appellant. The appellate court of course had not referred to the evidence of the plaintiff in detail but has come to observe that the nature of the plaintiff's evidence adduced in the case does not prove plaintiff's actual possession, It further said that it was not understandable that the underground cellars which are attached to the defendants' house and actually do form part and parcel of the defendants' house could ever be capable of any use by the plaintiff The appellate court agreed with the trial court that the plaintiff's evidence could not be believed as all the witnesses excepting the attesting witness Narain were interested being the members of the Maheshwari community and that there was no independent evidence establishing the plaintiff's title to the land in dispute. Consequently the first appellate court dismissed the appeal. Being aggrieved the plaintiff has come in second appeal.;