RAM SINGAR Vs. BHUNESWAR

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree dated 4.11.1992 passed in Civil Appeal No. 79 of 1992, Ram Singar Vs. Bhuneswar and another passed by 4th Additional District Judge, Deoria confirming the judgment and decree dated 29.5.1992 passed by 5th Additional Munsif, Deoria in original suit No. 11 of 1985, Bhuneswer Prasad Tripathi Vs. Ram Singar and another. The learned trial court had decreed the suit of the plaintiffs and the appeal filed by the defendant against the said appeal has been dismissed by the lower appellate court. Hence, the defendant-appellant is before this Court in this second appeal.

(2.) The brief facts relevant for disposal of the appeal are that the original plaintiff Ram Adhin had filed a suit for mandatory injunction with the facts that the village of the plaintiff was divided in the year 1896 by the government and separate numbers to the houses and sahan etc. were allotted. The disputed Deeh No. 658 having nos. 147, 148 and 154 is in the possession of the plaintiff since before the abolition of the zamindari. Initially Sikmi No. 147 was recorded originally in the name of one Budhiya wife of Ramdhan Upadhyay. She died in the year 1924 issue less long before the zamindari abolition. After her death, the said property came in possession of the then zamindar Balbhadra Tiwari. Since the plaintiff was having his house and sahan in the eastern side of the disputed land with the permission of the zamindar, the plaintiff came in possession of the said land, which was later on confirmed by the zamindar Balbhadra Tiwari through a Dastwardari dated 7.4.1956 in favour of plaintiff after taking nazrana. In the southern and western side of the disputed land No. 147, disputed Sikmi Nos. 154 and 148 are there, which are used as rasta by the plaintiffs and other co-villagers openly since last 100 years and through this rasta, the vehicles etc. of plaintiff and other persons are going and coming without any restriction up to the door of the plaintiff. It is further pleaded that the defendants are having no concern with Sikmi Nos. 147, 154 and 148 and they have never been in the use of said land but since they are powerful persons, about two days before filing of the suit, they have got encroached a portion of Sikmi Nos. 147 and 148, which is rasta and have constructed a palani therein, which is shown with the letters Ya, Ra, La, Wa in the site plan attached with the plaint and in Sikmi No. 147 in the western side, they have put a Nand. Due to this disputed construction, there has been hindrance in the free ingress and egress from the said rasta and due to the said construction in the said sahan No. 147, the plaintiff is suffering huge loss whereas the plaintiffs have got no right to make any construction in the said disputed land. The plaintiff had requested again and again to remove the construction but they are not doing so. Hence, the suit was filed for mandatory injunction as well as for prohibitory injunction regarding the said plot Nos. 147, 148 and 154 and along with the plaint, a map of the disputed plot was annexed. In the written statement filed by the defendants only this much was admitted that in Sikmi No. 147, house of Budhiya was situated, who had died issue less. After her death, her house had demolished and the then zamindar had obtained possession of the same. Further, it was pleaded that after the death of Budhiya, the defendants had come in possession of the said land Sikmi No. 147 with the permission of the then zamindar and they had established their Nand etc. in the same and they are continuing in possession. It was further stated that in Sikmi Nos. 148 and 154, there has never been a rasta and it was never used for ingress and egress by the co-villagers rather, it was stated that in the southern side of Sikmi No. 147, there is an old pakka well situated in Sikmi No. 171 and the water of the said well is flowing through the Sikmi No. 147. It was also pleaded that on the date of enforcement of the Zamindari Abolition and Land Reforms Act, defendants were in possession over the said land. The said land has vested under Section 9 of the Zamindari Abolition and Land Reforms Act with the defendants. It was also pleaded that since last more than 12 years, the defendants are in possession of the land in suit openly in the knowledge of the plaintiffs. They have pleaded their adverse possession over the Sikmi numbers in dispute.

(3.) On the basis of the pleadings of the parties, learned trial court had framed issues regarding the ownership and possession of the land and regarding the construction raised on the said land on the basis of the oral and documentary evidence produced by the parties. The plaintiffs have filed paper No. 10 Ka which is the said Dastwardari dated 7.4.1956 After assessing the evidence on record while deciding the issue Nos. 1 and 2 jointly, the learned trial court came to the conclusion that plaintiffs are in possession of the said land on the basis of the permission of the zamindar, which is proved by paper No. 10 Ka. The trial court also came to the conclusion that it is an admitted case between the parties that Smt. Budhiya was in possession of the Sikmi No. 147 and after her death, the property came in possession of the zamindar and since plaintiffs had succeeded to prove that with the permission of the zamindar, they came into possession over the said property regarding which, the document was also executed by the zamindar paper No. 10 Ka. So the plaintiff's possession over the land in dispute was proved and they are the owners of the said land. Accordingly, the construction raised by the defendants on the said land was held to be illegal and suit of the plaintiffs was decreed.