RAM DHAN Vs. MANSA RAM

JUDGEMENT

(1.) Mansa Ram and Bhagwan Singh filed present suit for permanent injunction restraining Ram Dhan and six others from making any construction on the sites shown by letters ABCG and HXZC and on the street towards West of site ABCG and shown red in plan Ex. P-8 attached to the plaint. The plaintiffs claim to have purchased the property shown by letters ABCDEFG from Bhoja Ram vide sale-deed Ex. P-2 who in turn had purchased the same from the Rehabilitation Department vide conveyance deed Ex. P1 and site HXZC was claimed to be a part of their ancestral house shown by letters HKLMP. The suit was contested and the title of the plaintiffs was denied. It was pleaded that defendants Nos. 1 to 3 had purchased the site in dispute from Budhu Ram and on the basis of family settlement, it fell exclusively to the share of defendant No. 3. The trial Court decreed the suit with regard to the portion ABCG after recording a finding that the plaintiffs are owners thereof. For the rest of the claim, the suit was dismissed. The defendants filed appeal which was heard by the Additional District Judge and in that appeal, the plaintiffs filed cross-objections. The lower Appellate Court came to the conclusion that the plaintiffs had proved ownership of site ABCG. It also came to the conclusion that the street shown towards the West of the aforesaid site was a street and the plaintiffs had a right to use it. In the result, the appeal was dismissed and the cross-objections were partly allowed. The defendants have come to this Court in second appeal.

(2.) Apparently, the findings recorded by the Courts below appear to be one of fact but on a deeper look I find that there has been a misreading of the document of title Ex. P.1. Plaintiff's own case is that Bhoja Ram became owner of site ABCDEFG by transfer from the Rehabilitation Department and that document is Ex. P.1. A look at Ex. P-1 shows that only an area of 558 square feet was transferred to Bhoja Ram which constituted House No. 5. The trial Court had appointed a Local Commissioner and the Local Commissioner reported that site ABCG also forms part of House No. 5 and the total area of the plot shown by letters ABCDG comes to over 700 square feet. When the present plaintiffs purchased from the previous owner vide sale-deed Ex. P-2 area of the property sold was not mentioned but only boundaries were given which are as follows :-

(3.) From the aforesaid four documents of title on record, it has to be seen whether plaintiffs have been able to establish that they are owners of more than 558 square feet because admittedly, the area of the balance portion excluding the site ABCG comes to about 560 square feet and if site ABCG is also included in the ownership of the plaintiffs, then the total area owned by the plaintiffs would come to 560 square feet plus 208 square feet i.e. 768 square feet. The Courts below have resolved this controversy by saying that when the areas do not tally then the boundaries must prevail and on this reasoning have made plaintiffs the owners of 768 square feet instead of 558 square feet.