DESH RAJ Vs. DHARAM VEER SINGH

JUDGEMENT

(1.) THIS second appeal, preferred un der Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 26-02-2003, passed in Civil Appeal No. 50 of 2000 by learned Additional District Judge / III Fast Track Court, Udham Singh Nagar, whereby the said appeal is dismissed and judgment and decree dated 24-07-2000 passed in Civil Suit No. 244 of 1997 passed by learned trial court was upheld.

(2.) BRIEF facts of the case, are that appellant (plaintiff) is tenure holder and resident of Village Sakainiya, Tehsil Gadarpur, District Udham Singh Nagar. According to plaint case, the defendant Dharam Veer Singh, on 02-12-1988 executed an agreement in favour of plaintiff to sell land measuring 05 Bighas in respect of plot No. 188/3, 11 Bighas 10 Biswa in respect of plot No. 193/1 M, 10 Bighas in respect of plot No. 193/2, 09 Bighas in respect of plot No. 193/2 M, and 10 Bighas 3 Biswa in respect of plot No. 193/3 (total land measuring 45 Bighas 13 Biswa) of the aforesaid village. The said agreement was registered before the Sub Registrar, Bazpur. It is pleaded by the plaintiff (appellant) that he is in possession of these plots since then. The dispute re lates to the plot No. 188/3 regarding which it is pleaded that by mistake it was mentioned as plot No. 188/5 in the agreement. It is further pleaded that as soon as the mistake was detected, on 27-06-1989, a rectification endorse ment was got recorded in a stamp pa per, in which the defendant Dharam Veer Singh clarified that it was plot No. 188/3, agreed to be sold, which was by mistake mentioned as 188/5 in the agreement, and possession of said land too has been delivered to the plaintiff. The plaintiff has alleged that in plot No. 188/3 his tube well is installed in a small room of 8 feet x 8 feet apart from his 07 Eucalyptus, 50 Sheesham and 2 Babool trees standing thereon. The de fendant, taking advantage of clerical mistake in the agreement, now wants to trespass over the aforesaid land in dis pute, though earlier in a suit No. 53 of 1989 filed by one Ashok against the present plaintiff in respect of disputed land, the defendant Dharam Veer Singh filed an affidavit that he has sold 05 Bigha land of plot No. 188/3. It is also alleged that the Advocate Commis sioner also, on inspection found the possession of the plaintiff over the plot In question. On 02-12-1997 defendant alongwith his relatives made attempt to take forcible possession of the disputed land. In the circumstances the plaintiff instituted the suit for injunction against defendant, restraining him and his fam ily members from taking forcible pos session, or interfering in possession of the plaintiff in respect of land measur ing 05 Bigha of plot No. 188/3.

(3.) THIS second appeal was admit ted on suggested substantial questions of law in memo or appeal, which are as under: 1. Whether, the admission of the respondent about delivery of possession of the disputed land to the appellant contained in two documents was binding on the respondent within the meaning of Section 17 to 21 and Section 115 of the Indian Evidence Act, 1872 ? 2. Whether, the judgment of rev enue court about the rights, title, interest and possession was binding in the civil court within the meaning of Section 330 and 331 of the U. P. Zamindari Abo lition and Land Reforms Act, 1950 as the competent revenue court had held cultivatory pos session of the appellant on the land in dispute ? 3. Whether, a person in possession can claim injunction against in terference with his possession even against rightful owner ? 4. Whether, the concurrent findings of fact of courts below are based completely ignoring the evidence and material on record ?