ABDUL MAJID Vs. ABDUL GAFFAR

JUDGEMENT

(1.) THE present appeal is directed against the judgment and decree dated 30.9.85 passed by the Additional District Judge, Gyanpur (then in the district of Varanasi) in Civil Appeal No. 25 of 1984. THE first appellate court had allowed the appeal before it and had dismissed the suit of the plaintiff- respondents which was allowed and decreed by the Munsif, Bhadohi, at Gyanpur in original Suit No. 94 of 1983 on 10.9.84. Thus the plaintiffs aggrieved by the first appellate judgment, preferred this appeal.

(2.) PLAINTIFFS had filed the suit for permanent injunction against the defendants for restraining them from interfering in the possession of the plaintiffs on the suit property. The plaintiffs annexed a map with it showing a piece of land by the letters Ka, Kha, Ga and Gha. It also described this area by its boundary. This land lay to the south of the residential plot of the plaintiffs and they were in possession thereon as owners. This land was a part of plot No. 151. One Sri Rai Bahadur Singh Baghel was the owner of this plot 151. He agreed to settle this land with the plaintiffs on 30.1.1977 and had received Rs. 90 for this purpose. After his death, his widow settled this land in favour of plaintiffs on 18.12.1982 and the plaintiffs continued to be in possession thereon. They had a chabutra on it and there was a drain running towards south from the residential house of the plaintiffs through this land flowing into a ditch to the west. The plaintiffs had their cattle trough, etc. also on this land. The defendant had no manner of right title or occupation on this land but they were giving out threats for unlawfully occupying the same. This prompted the filing of the suit.

(3.) THE defendants preferred the aforesaid first appeal (C.A. 25 of 1984). THE first appellate court believed the case made out by the defendants and disbelieved the case of the plaintiffs on the ground that the original lease deed dated 18.12.82 was not produced and the executant thereof was not examined. He drew an adverse inference against the plaintiffs for not producing the best evidence which he was able to produce. THE learned first appellate court was of the view that in the year 1982, the Zamindar had no authority to settle the land, as his right was already abolished by the U. P. Urban Areas Zamindari Abolition Act, w.e.f. 26.1.76 at Bhadohi. He also discarded the alternative theory of the plaintiffs that the plaintiffs had acquired any right by adverse possession on the suit property. He was further of the view that mere tethering of cattle on the land or keeping straw, legs etc., would not amount to possession, far less adverse possession. Upon such findings, the first appellate court had allowed the appeal before it and had dismissed the suit of the plaintiffs.