BADRI SINGH Vs. RAMESHWAR PRASAD

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree passed by the Additional Munsif First, Raebareli dated 22.3.1978 and the judgment and decree dated 13.3.1981 passed by the Civil Judge, Raebareli, dismissing the appeal. The facts giving rise to the present dispute are that a suit was filed for possession claiming therein that the disputed land belongs to the plaintiff and the defendant has no right or title over the land in dispute. In the suit, the case of the respondent-plaintiff was that his father Sri Beni Madhav purchased a house alongwith its sahan darwaza and easementary rights from one Raj Bahadur and Tuinya Lai for a sum of Rs. 700 by means of registered sale deed dated 3.6.1958. It was alleged in the suit that the disputed land was part and parcel of the house and sahan purchased by the said Beni Madhav on the basis of boundaries mentioned in the sale deed. The plaintiff further alleged that about 7-8 years prior to institution of suit, the appellant-defendant forcibly raised certain constructions against the consent of Beni Madhav predecessor-in-interest of the respondent-plaintiff, shown by letters P.G.F.O. and when the respondent-plaintiff in the year 1975 constructed a wall, the appellant-defendant dugout a foundation G.A.M.F. over the land belonging to respondent-plaintiff and despite the repeated request and persuasions of the respondent-plaintiff, the appellant did not remove the same. Hence, the necessity arose for filing suit for removal of constructions and also for permanent injunction. The suit was contested by the appellant by filing his written statement and denying the allegations made in the plaint. The defendant also pleaded that he had obtained the disputed land from one Gaya Prasad, Ex-Zamindar and constructed a kothri over the suit land about 28-30 years back. He also pleaded that plaintiff was stopped from removing the disputed constructions on the basis of estoppel and acquiescence.

(2.) The parties were permitted to lead their evidence and the trial court after appreciating the evidence came to the conclusion that the disputed constructions were liable to be removed and directed the defendant to remove the constructions and handover the possession to the plaintiff and he was permanently restrained from interfering in the said disputed land.

(3.) The appellant feeling aggrieved with the aforesaid judgment and decree, filed an appeal before the learned Civil Judge, Raebareli, who after hearing the parties, found that the defendant has not been able to prove his case on the basis of title set up by him in pursuance of receipt executed by the Ex-Zamindar. The appellate court also found that there was no illegality in the Judgment passed by the trial court and after appreciating the evidence of the parties, it came to the conclusion that the defendant has not been able to prove his case, which was set up by him on the basis of patta given to him by the Ex-Zamindar. The plea of estoppel was also decided by the appellate court in the negative on the ground that defendant was required to prove some act or omission or intention of the respondent-plain tiff in causing or permitting the appellant-defendant to raise the disputed constructions. The respondent-plaintiff though admitted in the plaint that constructions have been raised over the disputed land 7-8 years prior to institution of suit forcibly as against the consent of his father, but the appellate court travelled to the area from where in cross-examination it was stated that no notice was given by the respondent-plaintiff or his father and the appellant-defendant could have matured his title on the basis of adverse possession, and on finding that the adverse possession was not of 12 years the title could be proved, dismissed the appeal.