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Saturday, October 10, 2015

The trial court on a consideration of oral and documentary evidence held that the plaintiff has neither identified the suit property nor proved his ownership to it and he is not entitled for the reliefs sought for and dismissed all the suits. The plaintiffs preferred three appeals and the appellate court confirmed the findings of the trial court and dismissed the appeals. Aggrieved by the same, the plaintiffs preferred three independent second appeals and the High Court heard them on 13.6.2007 and held that the courts below had given concurrent findings on each of the issues and no interference is required under Section 100 C.P.C.; however there was no specific finding on the alleged sale deed dated 17.1.1927 and hence remanded the case to the trial court for specific finding on the said sale deed. Both the parties filed independent review applications and the High Court heard them on 17.11.2007 and recalled the order of remand dated 13.6.2007. Thereafter the High Court heard both the parties and by judgment dated 3.1.2008 dismissed all the second appeals. Challenging the said judgment the plaintiffs have preferred the present second appeals = The specific case of the plaintiffs is that the suit property is situated in Haysbarton compound owned by them and they let out land measuring 25x15 ft. on monthly rent to the defendants. The tenancy was denied by the defendants and they contended that the suit property is situated at Habilion compound and they had put up construction in the said land. There is a concurrent finding by the courts below that the plaintiffs failed to identify the suit property and the suit land is situated at Habilion compound. There is admission on the part of the plaintiffs as PW1 to the effect that the house of the defendants is constructed over the land taken on lease by the defendants from Sri Bachi Gaud Trust and the same land is subject matter of these suits. The High Court after referring to the above admission held that there is no need to give emphasis on the alleged sale deed dated 17.1.1927. Further Sub Divisional Magistrate, Nainital had sent letter 173-C/2 to the Additional District Magistrate, Nainital regarding survey of Bachi Gaud Trust Land and in said report house of the defendants have been shown in Habilion compound. The defendants have also filed copy of tax assessment by Nagar Palika which were marked as 178-C/4 and 78-C/6.We do not find any merit in the said submission. In fact both the parties have filed independent review applications pursuant to which the High Court heard the review applications and recalled its earlier judgment. Thereafter it heard both the parties and rendered the impugned judgment. In our view, the High Court has rightly appreciated the evidence on record and confirmed the concurrent findings of the courts below. We see no reason to interfere with the impugned judgment.

                                                                        NON-
REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.4747-4749 OF 2009


Daya Sah and Ors.                           ..   Appellants


      -vs-

Chandra Datt Pandey and Ors.    ..    Respondents




                               J U D G M E N T



C. NAGAPPAN, J.



These appeals are preferred against  the  common  judgment   dated  3.1.2008
passed by the High Court  of Uttrakhand at Nainital in  Second  Appeal  Nos.
81, 82 and 84 of 2004.  The appellants in all the appeals are the  same  and
respondents are also the same.

The case of the appellants-plaintiffs is that the suit property  belongs  to
them and it is situated in Haysbarton compound  and they had let out to  the
defendants land measuring 25x15 ft. on a monthly rent of Rs.30/-  per  month
and the defendants in contravention of the conditions  of  the  licence  had
occupied the land measuring 33.850 sq. meter and made construction and  also
encroached 16.988 sq. meter shown in the plaint  plan  and  constructed  two
rooms illegally and hence they filed suit no.32/83  for  demolition  of  the
construction;  suit  no.38/83  for  ejectment  of  the  defendants  and  for
possession in favour of the  plaintiffs;  and  suit  no.2/90  for  permanent
injunction restraining  the defendants not to put  illegal  construction  on
the suit land.

The respondents-defendants denied the tenancy pleaded by the plaintiffs  and
contended that the suit land is situate at Habilion  compound  and  it  does
not belong to the plaintiffs and on the other hand it is their property  and
due to heavy rain in July 1985 their house got  damaged  and  they  did  the
repairing work in both the rooms and they are in possession for the last  13
years.

All the three suits were tried together  and  the  sole  plaintiff  examined
himself as PW1 and the defendant examined himself as DW1 and documents  were
marked on both sides.  The trial  court  on  a  consideration  of  oral  and
documentary evidence held that the  plaintiff  has  neither  identified  the
suit property nor proved his ownership to it and he is not entitled for  the
reliefs sought for and dismissed all the suits.   The  plaintiffs  preferred
three appeals and the appellate court confirmed the findings  of  the  trial
court and dismissed the appeals.  Aggrieved  by  the  same,  the  plaintiffs
preferred three independent second appeals and the High Court heard them  on
13.6.2007 and held that the courts below had given  concurrent  findings  on
each of the issues  and  no  interference  is  required  under  Section  100
C.P.C.; however there was no specific  finding  on  the  alleged  sale  deed
dated 17.1.1927 and hence remanded the case to the trial court for  specific
finding on the said sale deed. Both the  parties  filed  independent  review
applications and the High Court heard them on 17.11.2007  and  recalled  the
order of remand dated 13.6.2007.   Thereafter the High Court heard both  the
parties and by judgment dated 3.1.2008 dismissed  all  the  second  appeals.
Challenging the said judgment the  plaintiffs  have  preferred  the  present
second appeals.

We heard the  submissions  of  Mrs.  Rachna  Joshi  Issar,  learned  counsel
appearing  for  the  appellants  and  Mr.  Huzefa  Ahmadi,  senior   counsel
appearing  on  behalf  of  the  respondents.   The  specific  case  of   the
plaintiffs is that the suit property  is  situated  in  Haysbarton  compound
owned by them and they let out land measuring 25x15 ft. on monthly  rent  to
the  defendants.   The  tenancy  was  denied  by  the  defendants  and  they
contended that the suit property is situated at Habilion compound  and  they
had put up construction in the said land.  There is a concurrent finding  by
the courts below that the plaintiffs failed to identify  the  suit  property
and the suit land is situated at Habilion compound.  There is  admission  on
the part of the plaintiffs as PW1 to  the  effect  that  the  house  of  the
defendants is constructed over the land taken on  lease  by  the  defendants
from Sri Bachi Gaud Trust and the same land is  subject  matter  of    these
suits.  The High Court after referring to  the  above  admission  held  that
there is no need to give emphasis on the alleged sale deed dated  17.1.1927.
 Further Sub Divisional Magistrate, Nainital   had sent  letter  173-C/2  to
the Additional District Magistrate, Nainital regarding survey of Bachi  Gaud
Trust Land and in said report house of the defendants  have  been  shown  in
Habilion compound.  The defendants have also filed copy  of  tax  assessment
by Nagar Palika which were marked as 178-C/4 and 78-C/6.

On behalf  of  the  appellants  the  earlier  judgment  of  the  High  Court
remanding the matter to the trial court to render a finding on  the  alleged
sale deed dated 17.1.1927 was pointed out and it is contended that the  High
Court erred in setting aside the said judgment and  hearing  the  matter  on
merits.  We do not find any merit in the said submission. In fact  both  the
parties have filed independent review applications  pursuant  to  which  the
High Court heard the review applications and recalled its earlier  judgment.
 Thereafter it heard both the parties and rendered  the  impugned  judgment.
In our view, the High Court has rightly appreciated the evidence  on  record
 and confirmed the concurrent findings of  the  courts  below.   We  see  no
reason to interfere with the impugned judgment.

There are no merits in the civil appeals and they are dismissed.  No  costs.




                                            ……………………….J.
                                                    (M.Y. EQBAL)



                                                                …………………………J.
                                                               (C. NAGAPPAN)
New Delhi;
October 07, 2015.








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