HORI LAL Vs. BABU RAM

JUDGEMENT

(1.) The present second appeal has been filed against the judgment and decree dated 7.4.1977 passed by VI Addl. District and Sessions Judge, Bareilly in Civil Appeal No. 216 of 1976 between Babu Ram (Plaintiff) and Prem Raj and Ors. (defendants). By an order dated. 19.7.1982 this court dismissed the appeal against the respondent No. 2 for non- prosecution. The relief sought in this appeal is that judgment and decree of the courts below may be set aside and the plaintiffs suit be dismissed.

(2.) The plaintiff filed a suit for permanent injunction to restrain defendants No. 1 to 4 from interfering in the plaintiffs possession over plot No. 356 situate in village Akhlabad, Tahsil Behuri district Bareilly. The plaintiff's case was that he was bhumidhar of plot No. 356 having an area of 2 biswas 9 biswas. it is the case of the plaintiff that the neighboring plot No. 354 having an area of 1 bigha 8 biswas had been purchased by defendants No. 1 to 4 from defendant No. 5. The said purchasers wanted to forcibly occupy a portion of the plaintiff's plot which has been shown in the plaint map. The defendants 1 to 4 denied the claim of the plaintiff and said that they have no intention to forcibly occupy the land as described in the plaint and the suit has been filed only for harassing the defendants.; Upon pleadings of the parties, the trial court framed issues, the main issue being "whether the land in suit is a part of Chak -2- No. 356." On the basis of documents the trial court found that the plaintiff was bhumidhar of plot No. 356 and that the plot No. 354 belonged to Shaukat Ali Shah which was subsequently purchased by defendants No. 1 to 4. It found that another neighbouring plot No. 355 belonged to Smt. Parvati. On the basis of documents the trial court held that these are new numbers given to the plots during the consolidation operation. On the main controversy with respect to disputed piece of land the trial court issued several commissions as it could not be found by such commissions as to which plot the disputed land belonged. However, the Amin's commissioner report found that the total area of plot No. 354 on the spot is 1 bigha 10 biswas whereas in the record of right it has been recorded as having an area of 1 bigha 8 biswa. Therefore, plot No. 354 was having an area of 2 biswas excess land on the spot. It was further found by the trial court that plot No. 356 had a recorded area of 2 bigha 9 biswas whereas on. the spot it was found to have 2 bigha 7 biswas and 16 biswansi. Therefore, plot No. 356 had a less area on the spot by 1 biswa and 4 biswansi than the area recorded in the revenue record. It was recorded by the trial court that upon a re-issue of commission the area of plot No. 355 was also excess. It was found that plot No. 355 had recorded area of one bigha 11 biswas whereas on the spot plot No. 355 it was found to have an area of 1 bigha 12 biswas and 17 biswansis, The trial court concluded that on the basis of record of rights and Amin commissioner report plot No. 354 belonging to defendants and plot ao.355 belonging to Smt. Parvati were -3 having excess land on the spot than that which has been recorded in the record of rights. Upon reaching at the aforesaid findings the trial court held that since the plaintiff has no grievance against Smt. Parvati the owner of plot No. 355, therefore, the excess land in plot No. 354 of defendants No. 1 to 4 is the land in dispute.

(3.) The trial court also considered the oral evidence of the parties wherein the plaintiff's witnesses stated that during the consolidation operation "Tudens" were fixed on the north and south of the western Mend of plot No. 356 and that the defendants had removed the same in order to include the piece of land in dispute in their own plot. The defendants' witnesses denied the fixing of "Tudens". The trial court considered the statement made by the defendant Hori.Lal in suit No. 138 of 1971 wherein he has specifically stated that "Tudens" and Pakki Mend existed on the spot. The defendants' witnesses also admitted about the existence of a well of the plaintiff in plot No. 356 which was 6 feet away from the Pakki Mend. Upon the aforesaid evidence the trial court concluded that there was encroachment from the side of plot No. 354 belonging to defendants No. 1 to 4. The plaintiff's case was that after consolidation operation he was given possession of his plot No. 356 and he had left a small portion for the purpose of ingress and egress of his bullocks for the purpose of operating his well. The trial court, therefore, decided the issue No. 1 in favour of the plaintiff and held that the excess land found on the spot in plot No. 354 was the land which was part of plot No. 356 and, therefore, proceeded to decree the plaintiff's suit.