NAND LAL Vs. RAM AUTAR

JUDGEMENT

(1.) Both the aforesaid matters are between the same parties involving a dispute pertaining to the same land, therefore, they were clubbed and have been heard together. It is the second appeal which is being decided first. Second Appeal No.315 of 2011 The second appeal has been filed by the legal heirs of the defendant, against the judgment and decree dated 29.5.2008 passed by the Addl. Civil Judge (Jr. Div.), Unnao, in Regular Suit No.73 of 2003, Ram Autar v. Kanchan, and the judgment and decree of the First Appellate Court dated 26.7.2011 passed by the Additional District Judge (Court No.1), Unnao. The respondent-plaintiff filed a suit for permanent injunction against Kanchan, the defendant and predecessor-in-interest of the appellants herein. The suit was filed on 26.3.2003. The plaint was accompanied by a certified copy of a "Khasra" dated 17.3.2003 of 1410F. pertaining to Gata Nos.393 and 394 measuring 0.130 Hect. And 1.320 Hect., the land in dispute as proof of the plaintiff being in possession. A written statement was filed by the defendant denying the possession of the plaintiff and annexing therewith a ''Dakhalnama' dated 2.2.2003 by which it was said that on conclusion of proceedings under section 145 Cr.P.C. in which a receiver had been appointed on the land in dispute by the Magistrate, the officials handed back possession to the defendant. The ''Dakhalnama' bore the signature of the plaintiff Ram Autar. The following issues were framed by the Trial Court :

(2.) The Trial court on consideration of the facts and evidence on record found that the Will on the basis of which the defendant claimed title could not be proved. The Trial Court also considered the fact that during mutation proceedings the Will had been found to be proved and the marginal witnesses had testified and proved the execution of the Will, but, during the trial before the Civil Court it found that they testified to the contrary. One of the witnesses became hostile and the other deposed in favour of the plaintiff, therefore, in view of section 32 of the Indian Evidence Act the Trial Court was of the view that their evidence in mutation proceedings under section 34 of the Act 1901 (hereinafter referred as 'Act 1901') was inadmissible in the trial before it.

(3.) The documentary evidence adduced by the defendant relating to the proceedings under section 145 Cr.P.C., to show his possession, was not accepted on the ground that in proceedings under section 145 Cr.P.C. possession of the two preceding months alone is seen and the said proceedings relating to possession are based on facts i.e. de facto possession, and not in law i.e. de jure possession as had been held in a report 2007 (6) ALJ NOC 1083 (Alld.), Smt. Jarawati Devi and ors. v. State of U.P. and ors. If possession is given during proceedings under section 145 and 146 Cr.P.C., then it does not prove the fact that the defendant is owner in possession of the land in dispute. The Will on the basis of which title was being claimed could not be proved. The Trial Court also opined that the orders passed during miscellaneous proceedings under section 145 Cr.P.C. are not binding on the Civil Court. It found that the land belonged to Mani Ram and after his death the plaintiff, his son, became its owner in possession and his name was also recorded in the revenue records. Accordingly, it came to the conclusion that it is the plaintiff who was the owner in possession of the land in dispute. Issue No.1 was decided accordingly and the suit was decreed.