DAYA SHANKAR Vs. DEBI DIN

JUDGEMENT

(1.) This is a second appeal by a defendant, Daya Shankar, against whom the lower appellate Court has decreed possession of a certain plot of land to the plaintiff. The plaintiff set out in his plaint that he was a lambardar and zamindar in an agricultural mahal and that the defendant took unlawful possession of plot No. 697, 7 biswas of land, without any right and set up a tiled shed and kept coal and ashes for three years without the consent of the plaintiff. The written statement alleged that plaintiff was not the owner of any portion of the plot and had never been in possession within the last 12 years. In para. 10 it was pleaded that Pandit Ganga Prasad was the owner of this plot and that the contesting defendant took possession from him and had cultivated the plot for about 18 years. In para. 11 it was alleged that the Contesting defendant had been in adverse proprietary possession of that portion of the plot on which he had his tiled shed for more than 16 years. The main issues were: "(1) Whether plot No. 697 belongs to the plaintiff or does it belong to Ganga Prasad? (2) How old are the khaprail and kothries and has the defendant become owner of the land beneath them by adverse possession?" The Munsif found: I accordingly hold that it has been proved by reliable oral evidence that the khaprail, etc., has been in existence for the last over 12 years and defendant has become owner of the land underneath, i.e., the plot in dispute by openly being in adverse possession against the plaintiff; and the Munsif accordingly dismissed the suit. The plaintiff appealed. The lower appellate Court pointed out that the number in question, 697 of 7 biswas in extent was bounded on the south by the Grant Trunk Road and on the north by certain fields belonging to Ganga Prasad also called Gaya Prasad, that these fields had been cultivated by the defendant for between 16 and 18 years as a tenant of Ganga Prasad; that the defendant was using plot No. 697 in dispute for the storage of line and cinders and had erected a khaprail or tiled shed where his workmen lived and also a shed with a tin roof. On pp. 35 and 37 the lower appellate Court followed the Munsif in believing the witnesses for the defendant as regards the period of time at which the structures had existed, and on pp. 40 and 41 the Court held: All that I can really find is that this shed with a tiled roof to it has been in existence for about 16 to 18 years and that it is, as the defendant says, built of kuohcha walls with pucca pillars outside, and is about five feet high and is rather long; how long there is really no evidence to say. I may mention that Jugal Kishore, who has however now been discredited, says that the tiled roof shed was placed on a kuchcba foundation and is 1 1/2 to 2 hands high and that the defendant's servants live there.

(2.) On p. 43 the judgment says that the small piece of waste land between the fields and the road was taken by the defendant under the erroneous impression that it belonged to his zamindar Ganga Prasad, and erected this shed of kuchcha bricks with pucca. outer pillars about five feet high with a tiled roof and also a temporary structure with a tin roof which has been moved from time to time. It is clear therefore that the structures are both of a temporary nature. The kuchcha bricks built apparently not in masonry but in gara are easily removable as well as the, tin shed. The Court also stated on p. 41: The defendant in examination in chief said that his putting up of the shed with a tiled roof 16-18 years ago was objected to by the plaintiff's Karin-das - he evidently means objected to at or about the time it was put up - and he says that he told these men that unless they had the boundaries cleared he would not give the land up to them. That means of course that the defendant was not certain whether the land was in the plaintiff's mahal or in Ganga Prasad or Gaya Prasad's mahal and that until the plaintiff had this matter definitely settled he was not going to give up the land to a man who might not be entitled to it.

(3.) In cross-examination the defendant stated: ...that he did not try to find out whom the land really belonged to. He intended to purchase from whoever was proved to be its owner, and in the meanwhile he was content to remain in possession and use of the land. He said as a witness that he had no intention of keeping possession of the land by force,