CAV Judgment

1. The substantial question of law formulated and to be answered in the instant defendants' second appeal is as under:

“Whether on the facts and the circumstances of the case the appellate Court illegally reversed the judgment and decree of the trial Court by misreading the evidence and holding that the disputed land belongs to the plaintiffs (respondents herein)?”

2. During pendency of the instant appeal, Respondent 1/plaintif 1 Tetkuram died and, therefore, Respondents 1-A to 1-F, who are legal heirs of Tetkuram are brought on record. Further, defendant

1/Appellant 1 Khorbahara also died during pendency of this appeal and his legal heirs are already on record and, therefore, his name has been deleted from the array of cause title.

3. Facts of the case, in short, are that a suit for declaration, perpetual injunction and possession was fled by Respondents 1 to 3 claiming that the land bearing Khasra No. 888 area 0.10 hectares is ancestral property, which was earlier recorded in the name of their ancestor Ramdayal and after his death it is recorded in the name of Respondents No. 2 and 3 and original Respondent No. 1. However, the Appellants/defendants erected a house over the suit land despite objection. The plaintifs as also defendant Jagdish applied for demarcation. On their applications, the Tahsildar Berla submitted his report dated 21.1.2002. On this report, the plaintifs came to know that they are owners of the suit land on which the defendants have illegally made encroachment. With a view to end the dispute, it was agreed between the parties that 15 dismil out of the total 25 dismil land shall be purchased by the defendants for a sum of Rs.15,000 and agreement to this efect was entered into between the parties. However, the defendants neither got the sale deed executed nor did vacate the suit land. They also constructed a house over a part of the disputed land in the previous years. A legal notice for handing over possession of the suit land was sent and thereafter the suit was fled.

4. The defendants denied the allegations of the plaintifs made in the plaint and stated in their written statements that the father of the plaintifs namely Ramdayal died 16 years prior to fling of the suit. They have not encroached upon any land belonging to the plaintifs. It was further pleaded that one Kartikram sold his land situated at village Siwar to Khorbahara/deceased Appellant No.1 on 26.05.1952 and since then the defendants are in possession over the suit land and they have constructed there a house and they are residing in the said house. It was further pleaded that the plaintifs illegally demanded a sum of Rs.15,000 and got signature of the defendants on a plain paper. It was further pleaded that original plaintif Tetkuram was in possession over his land which is adjacent to the disputed land and the suit has been fled with an intention to harass the defendants. The Trial Court vide its judgment dated 30.8.2003 dismissed the suit of the plaintifs and recorded fnding that plaintifs have failed to prove that they are the owners and title holders of the suit land and further failed to prove that the defendants/Appellants have dispossessed them.

5. The Respondents/plaintifs fled an appeal against the judgment of the Trial court. The First Appellate Court vide the impugned judgment dated 27.1.2004 allowed the appeal and set aside the judgment and decree passed by the Trial court and granted a decree with costs in favour of the Respondents/plaintifs declaring that they are the owners of the suit land and they are entitled to recover possession of the suit land from the Appellants/defendants after demolition of the house and garden and further granted a decree of perpetual injunction against the interference. Hence, the instant second appeal by the defendants/Appellants.

6. During pendency of the instant appeal, the Respondents/plaintifs produced the Bandobast Survekshan (settlement renumbering) of the year 1981-82 i.e. Annexure