BHAGWAN SINGH Vs. RAMJI LAL

JUDGEMENT

(1.) This Second Appeal is filed by the plaintiff appellant Bhagwan Singh who lost before the First Appellate Court, the Court of Civil Judge, Bayana. The First Appellate Court vide its judgment dated 26.9.1992 allowed the appeal of the defendant-respondents and the judgment dated 1.3.1979 and decree dated 6.3.1979 passed by the trial Court, the Court of the learned Munsif Magistrate, Bayana were set-aside.

(2.) The plaintiff-appellant had filed a suit for possession before the trial Court on 30.1.1973 claiming that the defendant Brij Lal since, deceased had taken the possession forcibly of a plot of land (Gait or Nohara) measuring 70' x 45' and more particular description is given in the plaint on 4.6.1968 and, therefore, the plaintiff appellant was entitled to get the possession back of the said plot in question. The plaintiff-appellant claimed in the plaint that he was living with his 'Mama' the maternal uncle since his childhood and after the death of his maternal uncle he was in continued possession of the said plot of land for the last twenty years and, therefore, the defendant respondents had taken the possession forcibly from the appellant and, therefore, the suit for possession was filed. The plaintiff also stated that in the course of taking forcible possession of the said plot of land, a criminal case No. 197/1968 was also filed before the same Court wherein the defendant-respondents were convicted for offences under Sections 323 and 447, I.P.C., but in an appeal before the learned Sessions Judge, Bharatpur, the defendants were acquitted of the charge of offence under Section 447, I.I'.C., however, they were convicted for offence under Section 323, I.P.C.; and a fine was imposed upon then.

(3.) Before the trial Court, the plaintiff himself was examined as PW-1 and stated that he was in possession of the said plot of land (Gait) for the last twenty years and prior that his maternal uncle was in possession of the said plot of land in question. He had also stated that he had two maternal uncles namely; Lachchhi and Gyarsa but in the plaint there is no mention as to which maternal uncle of these two had given him the said plot. During the course of cross-examination, he stated that his maternal uncle Lachchhi had given him the said right of possession in the presence of five other persons who have already expired in Sainvat 2000 equivalent to the year 1943. However, he never stated that he was the adopted son the said maternal uncle. About the use of the said plot of land, in question by him, he had stated that he used to make cow dung (Upla/Kande) on that plot. He had further stated that his maternal uncle's daughters namely; Kishano and Magni also used that plot and later on the wife of his cousin (maternal uncle's son Bhanja') used to do the same. However, none of these three ladles were produced in evidence. He also stated in his cross examination that he had also constructed a boundary wall (Dole) of sand and that work was done by one Ram Khiladi (PW-2) on contract basis, whereas the said PW-2, Ram Khiladi in his statement has stated that the said boundary wall was constructed only on the road side of the said plot in question. PW-3 Nand Kishore also did not vouch for the possession of maternal uncle Lachchhi of the plaintiff.