The courts affirmed that possession rights and title must be supported by credible evidence and that agreements between parties defining property use are binding.

J U D G M E N T

The plaintiff, who lost before both the courts below, is the appellant. He sued for recovery of possession on the strength of title of 'B' schedule property which was negatived by both the courts below.

2. The plaintiff claims to have obtained plaint 'A'

schedule property as per three sale deeds, namely, 1954/1983, 3856/1986 and 2597/1989. The property so acquired by the plaintiff abuts a road on the southern side. There was a building in the 'A' schedule property at the relevant time. The defendant owns property on the eastern and northern side of the plaint 'A' schedule property. The plaintiff claimed that in order to carry out maintenance and repairs for his building, he left a narrow strip of land on the eastern and northern side of his property and that is shown as 'B' schedule. The defendants have no manner of right over that portion of the property. Accusing the second defendant of having trespassed into the 'B' schedule property in October, 2004, and reduced into his possession, the suit was laid.

3. The defendants filed separate written statements.

They pointed out that even though the document of title of the plaintiff showed a larger extent, actually, he was in possession of only 2 cents and 375 sq. links of land. It was pointed out by them that there was an agreement between the parties by which both agreed to have construction over the entire property to its extremities and in pursuance to which extension was taken to the existing building by the plaintiff in terms of the agreement. The claim now made of having left 2½ feet on either side is without any bonafide. Denying the allegation of trespass, they prayed for a dismissal of the suit.

4. Trial court framed necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A8 from the side of the plaintiff. The defendants examined DWs 1 to 3 and had Exts. B1 to B4 marked. Exts. C1 and C1(a) are the Commissioner's report and plan.

5. The trial court, mainly based on the Commissioner's report, found against the plaintiff and also noticed that there was a claim of easement right by the plaintiff over the suit property.

6. The aggrieved plaintiff carried the matter in appeal as A.S.No. 344/2007. The lower appellate court, on an independent evaluation of the evidence, came to the conclusion that the story put forward by the plaintiff of having left 2 ½ feet wide space on the northern and eastern side cannot be believed in the light of the evidence adduced in the case and thus, refused to interfere with the judgment and decree of the trial court.

7. Notice was issued on the following substantial questions of law:

“(i) Whether the courts below are justified in holding that the appellant has no title to B schedule proprty on the strength of Exts.A2 to A4 and hence not entitled to recover it?

(ii) Whether the courts below are justified in holding that appellant has no title to 'FIGH' plot in Ext.C1(a) plan after accepting the report Ext.C1 and the plan?

(iii) Are not the findings of the courts below on the question of title to B schedule property perverse and contrary to admitted documents Exts.A1 to A4?”

8. Sri. Narendra Kumar, the learned counsel appearing for the appellants contended that both the courts below have erred both on facts and in law in dismissing the suit. A reading of the Commissioner's report would clearly show that the property of the defendants has not been measured with reference to the document of title and that is fatal to the case. The measurement was done with respect to the documents of the property of the plaintiff only and that is not sufficient to ascertain the exact location of the property. It is also pointed out by the learned counsel that even though the plaintiff ought to have 3 and odd cents of land, he was found in possession of much lesser extent on measurement. The decision taken by the courts below, without having the property of the defendants measured as per the docume