MOHAR SINGH Vs. BANKELAL

JUDGEMENT

(1.) THIS is defendants' second appeal having suffered a decree for declaration of title and permanent injunction in favour of the respondents in both Courts below.

(2.) BRIEFLY stated the case of the respondents was that the suit land marked by letters ABCD in the plaint map is situated to the south of respondents' house. House of one Bhogiram was situated to the east of the suit land ABCD. On 4.5.1972 the appellants purchased a portion of the house of Bhogiram which adjoins the suit land. In the sale deed, Bhogiram expressly mentioned that door at letter M shown towards east would be closed. This led the appellants/defendants to make an attempt to open a door at point E and staircase at point F towards the suit land belonging to the respondents/plaintiffs. The respondents/plaintiffs contended that they are the owners and in possession of the suit land ABCD for last more than 40 years with their Neem tree standing on it. It is said that they have constructed chabutra on the suit land and that their khanotis (a kind of structure made for feeding cattle) are also situated on the same land. The defendants had never any access to this land. The respondents/plaintiffs, therefore, claimed declaration of title to the suit land and permanent injunction restraining the appellants from opening any door or access at point E or F shown in the map attached to the plaint. The appellants resisted the claim by denying title of the respondents and by contending inter alia that the suit land in fact belonged to Municipal Committee.

(3.) APPLYING the mind to the case in hand I find that there should be absolutely no difficulty in upholding the judgment and decree of: both Courts below in as much as the plaintiffs were admittedly in possession of the suit land ABCD as found by the Courts below from oral and documentary evidence as discussed in paras 7 to 10 of the judgment. The learned lower Court also preferred evidence of the plaintiffs/respondents to that of the appellants/defendants, as discussed in para 11, to arrive at a firm conclusion, by endorsing the findings of the trial Court, that the plaintiffs were proved to have been in exclusive possession of the suit land ABCD. The difficulty sought to be raised by the appellants becomes non -existent in view of the law laid down in the case of Nair Service Society (AIR 1968 SC 1165) in which it has been held that a person in possession of land in presumed character of owner exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world except the rightful owner and if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by limitation, his right is extinguished for ever and the possessory owner acquires absolute title. It is further held that " in the event of disturbance of possession by a third party and not the owner, the plaintiff can maintain a possessory suit under the provisions of Specific Relief Act in which title would be immaterial." It is the second part of law laid down in the case of Nair Service Society (supra) that a complete answer is found to the contention of the appellants. The appellant') did not allege themselves to be the owners of the suit land. The appellants allege that Municipal Committee is the owner. The Municipal Committee has not come forward to claim title and possession to the land. Consequently inasmuch as the possession of the plaintiffs/respondents has been dearly proved over the suit land they can certainly seek relief under the Specific Relief Act in the nature of permanent injunction against the intruder namely the appellant') who want to open access at points E and F over the plaintiffs land by disturbing their possession. The submission of the appellants that Commissioner's report was not considered by the lower appellate Court is not important for the simple reason that the report (I have gone through it) is not in the nature of evidence of long possession of the plaintiffs or otherwise. It merely, describes the situation as it existed particularly regarding the nali and that is undisputed in the case. The Commissioner's report is not consequential at all from point of view of acts or ownership or possession. I am not impressed by the grievance on behalf of the appellants that the evidence, oral and documentary, has not been considered properly by the lower appellate Court. In fact, as adverted earlier, paras 7 to 12 of the impugned judgment clearly show that the lower appellate Court has considered and evaluated properly both oral and documentary evidence as to the possession of the plaintiffs by various acts like owing a Neem tree, constructing a chabutra and having khanoties as against a mere denial from the side of the defendants. The oral evidence from the side of the defendants was also rightly discarded as mere hear -say. In the result there is no difficulty at all to uphold the judgment of the lower appellate Court to the effect that the plaintiffs/respondents have proved their possessory title vis -a -vis the appellants over the suit and that the plaintiffs were entitled to relief of permanent injunction as granted by the two court below. Consequently, the appeal fails and is dismissed with cost. Counsel's fee Rs. 300/ - if certified.