RAM NARAIN SINGH Vs. SHRIPAT SINGH

JUDGEMENT

(1.) This is an appeal by Ram Narain Singh and others, defendants, and it arises out of a suit brought by Shripat Singh and others, plaintiffs, for possession of a strip of land and for removal of certain constructions built on the same. Their allegation was that this strip of land belonged originally to one Deo Saran who utilised it as a sehan darwaza and that after Deo Saran's death long ago the plaintiffs entered into possession of the same and the defendants started making certain constructions some time prior to the year 1925 when the plaintiffs instituted the suit but subsequently withdrew it and now the defendants have again made certain new constructions and the plaintiffs want their demolition. The defence was that the defendants were the heirs of Deo Saran and were in possession of the plot of land mentioned in the plaint ever since the death of Deo Saran. Before I proceed to discuss the various points that arise in the case, and the arguments that have been advanced before me, it is necessary to clear the ground a little. The trial Court observed while deciding issue 2 that: Plaintiffs pairokar Shripat Singh, P.W. 2, admitted that the defendants had been adjudicated as heirs of Deo Saran in preference to the plaintiffs but not against one Thakur Dayal.... The matter therefore cannot be said to have been finally settled, but this much is at least certain that the defendants have been in possession of the site since a long time.

(2.) The lower Appellate Court while deciding point No. 3 observed, "The mere fact that they (the defendants) are the heirs of Deo Saran Singh...." From this it is clear that the Courts below held the view that the defendants as the heirs of Deo Saran had obtained possession of this strip of land which was used as a sehan darwaza by Deo Saran. That being so, it is clear that the defendants are also entitled to use this land as a sehan darwaza. If every other point is to be decided in favour of the plaintiffs, it is clear that on the above view of the matter the plaintiffs would not be entitled to obtain possession of this plot of land. The utmost that they can claim is that the plot of land should be restored to its original condition as a sehan darwaza and that the defendants can enjoy it only as a sehan darwaza. Courts below over and above granting demolition of certain constructions gave a decree for possession to the plaintiffs. That decree according to my judgment is obviously wrong. The plain, tiffs can in no event obtain possession of the site when the defendants have been in possession of the same from a long time, that is to say ever since the death of Deo Saran which took place more than 12 years ago.

(3.) While stating the allegations of the plaintiffs in an earlier portion of the judgment, I mentioned that the plaintiffs referred to a previous litigation of 1925. In that litigation also, the plaintiffs complained that the defendants had made certain constructions. A commissioner was appointed who submitted a report and made a plan. The report is paper No. 65-0 of the record and the map is paper No. 66-C of the record. The latter document has now been placed just after the decree. Those two documents clearly show that the defendants had even in 1925, and possibly two years before it, on this very plot of land, a gullor, a ghur and a few charnis. An amin was deputed in the present ease also to prepare a map. The former gullor is shown in the amin's map by letter A, the ghur is shown by the letter I 1 and the charnis are shown by the letter D. There is another charni shown in the amin's map by the letter E and the learned Civil Judge is of the opinion that this charni is a new one. A comparison of the map prepared by the former commissioner and the present amin satisfies me that this charni is not a new one but was in existence even at the time when the suit of 1925 was brought. I would not have interfered probably with the finding of the Court below that one of the charnis, namely at E in the amin's map, is a new one, but for the fact that from the plaint allegations it is clear that the plaintiffs themselves do not allege that any charnis have been built by the defen-dants after the former suit. They state clearly that when the former suit was instituted there was a gullor, a ghur, a few charnis and two mandhas and that after the withdrawal of the suit, the two mandhas were removed but the other constructions were allowed to remain; they nowhere allege that any new charni was built.