NESAR Vs. ABDUL NIYAJ AHMAD

JUDGEMENT

(1.) Both the appeals have been filed by appellant- defendant No. 1 and legal representatives of defendant No. 3 questioning the legality and sustainability of impugned judgment and decree dtd. 24/8/2023 passed by First Appellate Court in Civil Appeal No. 28-A/2016, whereby learned first appellate court reversed the part of judgment and decree passed by learned trial court in favour of defendants No. 1 & 3 holding them to be the title holder of the land measuring 0.029 Hect. situated at Plot No. 114/2 and land measuring 0.014 Hect. situated at Plot No. 114/2 respectively on the ground that they have perfected their title by adverse possession and allowed the suit against the defendants No. 2 & 4, directed them to hand over vacant possession within 60 days. Against the judgment and decree of trial court, plaintiffs preferred first appeal under Sec. 96 of CPC which was registered as Civil Appeal No. 28A/2016 and decided on 24/8/2023 ie., impugned judgment in both appeals. Defendants No. 1 & 3 preferred these second appeal separately.

(2.) Facts of the case relevant for disposal of these appeals are that Respondents No. 1 to 4/ plaintiffs have filed a suit for declaration of title and permanent injunction and possession of Plot No. 114/2 area 0.081 hectare situated at village Kunkuri District Jashpur, C.G. on the ground that the suit land was purchased by their ancestor Abdul Wahab in the year 1955 from Shabnam Miyan who built a house and was running liquor shop which by the passage of time was closed in the year 1980-81. Abdul Wahab started living along with his family at Ranchi (Jharkhand), he used to come to Kunkuri time to time, maintain and got the house repaired. In the year 1985-86 when he again came to Kunkuri, defendants No. 1 to 4 have requested to provide them the house, upon which Abdul Wahab gave permission to accommodate them in the house and the defendants No. 1 to 4 started living in the suit house with the permission of Late Abdul Wahab. In the year 1988 Abdul Wahab died and thereafter his son started coming to Kunkuri for looking after and maintaining the house. In the year 2009, plaintiffs decided to construct shop upon the land and gave this information to defendants No. 1 to 4 and asked them to vacate the house, upon which they refused to vacate the house. Plaintiffs were not the owner of the land/ house owned by Abdul Wahab. Application under Sec. 129 of Chhattisgarh Land Revenue Code, 1959 submitted for getting the land demarcated on 2/6/2009. Spot inspection was prepared on 03. 06.2009, demarcation report was submitted before the Tahsildar in which it is mentioned that defendant No. 2 on 0.014 Hect., defendant No. 3 on 0.04 hect. and defendant No. 4 on 0.004 hect. were in possession and sought relief for declaration of title over the land mentioned in Schedule-A as also the house situated over it and to provide vacant possession of the house and the land from defendant no. 1 to 4 and sought permanent injunction of not to interfere in peaceful possession of the suit property.

(3.) Defendants No. 1 and 3 submitted their written statement in the cross suit denying that the house was constructed by Abdul Wahab. It was further pleaded that in the year 1979-80, defendant No. 1 came to Kunkuri and defendant No. 3 came to Kunkuri in 1975-76. They were residing within the knowledge of Nizam Khan and Abdul Wahab upon the land by constructing a house of asbestos sheets with the amenities like bathroom and washroom. They have not made any illegal construction, they are not raising any additional construction. They have perfected their title based on their adverse possession. In the cross suit, it is pleaded that since 1979-80 they are residing in the house constructed over the suit land within the knowledge of Abdul Wahab. Abdul Wahab had not made any effort to evict defendant No. 3 for last 30-35 years and has sought relief of dismissal of the suit and to declare title of defendants No. 1 and 3 over the land measuring 0.32 hect. and 0.016 hect. of the suit property on the basis of adverse possession and also sought for permanent injunction.