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2007 Supreme(All) 2936
[2008(3) ADJ 555]
ALLAHABAD HIGH COURT
BEFORE : TARUN AGARWALA, J.
RAMJI PANDEY ......Appellant
Versus
RAMESHWAR MALI AND ANOTHER ..........Respondents
(Second Appeal Nos. 72 and 73 of 1976, decided on 5th December, 2007)
Counsel :
A.N. Bhargava, G.P. Bhargava and A.K. Shukla for the Appellant; H.S. Gosh, R. Pandey, S.K. Mishra, Rajeev Joshi, D.N. Gupta, Sudheer Mishra, U.V. Misra, Shiv Shanker Gupta and Vijay Kumar Gupta and P.K. Mishra for the Respondents.
Headnote:Code of Civil Procedure, 1908—Order XXXIX, Rule 1—Registration Act, 1908—Section 17—Transfer of Property Act, 1882—Sections 3 and 54—Filing of suit for permanent injunction—Allegation of plaintiff that he was owner of house marked by letters A, B, C, D, vide a registered sale-deed purchased from R.M. and was in possession since then—And that defendants-appellants were interfering in plaintiffs-respondents’ rights in construction of wall marked by letters AB and AE in plaint map—But also, defendant-appellants filed a suit against plaintiffs-respondents for permanent injunction alleging that house in question did not belonged to plaintiff-appellants, or person R.M. from whom he had purchased by said sale-deed, nor they had built any wall or part of house—And that a major portion of house fell in plot of B.M., who was an original owner (since deceased) and his L.Rs. sold it to defendants-appellants, vide a registered sale-deed—And since then he was in possession—Dismissal of suit of plaintiffs-respondents by trial Court—And decreed suit of defendants-appellants—Thereafter, plaintiffs-respondents filed two appeals—Allowed by lower appellate Court and that judgment of trial Court was set aside—And that suit was decreed—And also held that Commissioner’s report was not correct—And that surrender deed executed by K.M. in favour of B.R. and sale-deed executed by B.R. in fovour of R.M. were genuine documents—And that was liable to be relied upon and admissible in evidence—Hence, appeals against, by plaintiffs-appellants—Held, non-consideration of entry in Khasra, would not vitiate finding of lower appellate Court on question of title of B.M., and thereafter K.M. vis-a-vis ownership of B.R. on property in question—Hence, no interference in finding of lower appellate Court—And that registration was not required under Section 17(1)(b) of Registration Act—It is neither possible nor permissible for this Court to take a different view in absence of any substantial question of law arising for consideration. [Paras 10 to 16]
Hon’ble Tarun Agarwala, J.—Both the plaintiff and the defendants are claiming to be the owner and in possession of the house marked by the letters A, B, C, D in plot No. 541. For facility, Rameshwar who had filed suit No. 282 of 1967 will, hereinafter be referred as the plaintiff and Ramji Pandey who had filed suit No. 30 of 1968 would be referred hereinafter as the defendant.
2. The plaintiff Rameshwar filed a suit for permanent injunction alleging that he is the owner of the house marked by the letters A, B, C, D vide a registered sale-deed dated 7.2.1956 purchased from Rama Misra and is in possession since then. The plaintiff alleged that the mud walls shown by letters AB and AE, as indicated in the plaint map, had deteriorated and that the defendants were interfering in the plaintiffs right in the reconstruction of the said wall. The plaintiff alleged that the defendants had nothing to do with the said house and the land. Consequently, the suit for permanent injunction was filed restraining the defendants from interfering with the plaintiffs right in replacing the walls marked by letters AB and AE as shown in the plaint map.
3. The defendant, Ramji Pandey also filed a suit No. 30 of 1968, for a permanent injunction, alleging that the house in question does not belong to Rameshwar Mali or to Rama Misra nor had they built any wall or part of the house and that a major portion of the house fell in plot No. 541 which belonged to Bachan Mali who was the original owner and upon his death, the said house came into the share of his widow and his son Kishan Mali who, in turn, sold it to the defendant Ramji Pandey, vide a registered sale-deed dated 22.11.1967 and, since then, he is in possession. The said defendant in his suit prayed that Rameshwar Mali should be restrained from interfering with his possession over the house in question and further prayed, in the alternative, that in the event he is not found to be in possession, in that case, possession be granted to him by the Court.
4. On the basis of the pleadings, various issues were framed and upon the evidence being recorded and after considering the material evidence on record, the trial Court dismissed the suit of Rameshwar Mali, namely, Suit No. 282 of 1967 and decreed the suit No. 30 of 1968 filed by Ramji Pandey. The trial Court held that on the basis of the Commissioner’s report, the walls denoted by letters AB and AE fell in plot No. 540 which belonged to Ramji Pandey. Further, the Khasra, exhibit A-1 also indicated that Bachan Mali was the owner of plot No. 541 and Ramji was the owner of plot No. 540 and consequently held that the house belonged to Bachan Mali and upon his death was inherited by his widow and his son Kishan Mali who in turn sold it to Ramji Pandey. The trial Court disbelieved the version of the plaintiff Rameshwar Mali and held that the surrender deed dated 29.7.1948 executed by Kishan Mali, being unstamped, was not a reliable document and that the said document could easily be manufactured. Further, the sale-deed dated 18th March, 1950 executed by Bhoj Raj Misra in favour of Rama Misra being an unregistered document which could not be relied upon and that the said document could also be manufactured and, on these two counts, the plaintiff’s case was thrown out.
5. The plaintiff, Rameshwar Mali, filed two appeals which were allowed by the lower appellate Court and the judgment of the trial Court was set aside and suit No. 282 of 1967 of Rameshwar Mali, the plaintiff, was decreed and a permanent injunction was issued restraining Ramji Pandey from interfering with the plaintiff’s right in replacing the walls AB and AE as shown in the plaint map. The appellate Court, after considering the matter and after reappraising the evidence, held that the Commissioner’s report was not correct and that the surrender deed executed by Kishan Mali in favour of Bhoj Raj as well as the sale-deed dated 18.3.1950 executed by Bhoj Raj in favour of Rama Mishra were genu
