Judgment:
A.K. Shrivastava, J.
1. This second appeal is preferred by the defendant against the judgment and decree passed by Ist Appellate Court affirming the judgment and decree passed by the Trial Court decreeing the suit of the plaintiff for declaration and injunction.
2. Plaintiff Bhogiram who is respondent in this appeal, filed a suit for declaration and injunction alleging that the land in question was purchased by him in the year 1976 from Mahant Bhagwat Das and obtained possession. Thereafter, the plaintiff raised construction and built a house on a portion of the land and the rest portion has been kept open. The defendants by taking law in their hands are trying to take possession of open land of plaintiff and is trying to dispossess him, hence, the suit has been filed for declaration and injunction.
3. The defendants denied plaint averments. According to them, Mahant Bhagwat was not the owner of the land nor he was possessing the same. The suit land has not been alienated by registered sale deed. According to the defendants, the plaintiff is not possessing the suit property. They have pleaded in their written statement that on the suit property, they are preparing cow dung cack (Kande) and throwing garbage and in this manner they are possessing the land in question.
4. The learned Trial Court after framing issues decreed the suit of the plaintiff and the appeal, which was preferred by the defendants, has also been dismissed by impugned judgment and decree. Hence, this second appeal.
5. This second appeal was admitted on 27-2-1997 on the following substantial questions of law :--
(i) 'Whether in the absence of any proof in respect of title of plaintiff through Mahant Bhagwat Das, Courts below were right in holding that the plaintiff is owner of the property ?
(ii) Whether, the title has passed to plaintiff through Ex. P-1, an unregistered deed of sale ?
(iii) Whether, Mahant Bhagwat Das being head of temple can alienate the property as owner when he acquired the Gaddi of Mahant of temple and property of temple managed by him can be alienated by him ?
6. Though the plaintiff in his plaint specifically pleaded that he bought the suit land in the year 1976 from Mahant Bhagwat Das and thereafter constructed a house on certain portion of it but the plaintiff utterly failed to submit the document in evidence of his title. No doubt Ex. P-1 which is an unregistered deed dated 10-3-1984 has been submitted by the plaintiff in his evidence. According to the plaintiff by this document, he purchased the suit property for consideration of Rs. 60/-. In this document, it has been mentioned that a part of this property was sold earlier to the plaintiff but the suit has not been filed by the plaintiff on the basis of this document. As per Para 3 of his plaint, he purchased the suit property from Mahant Bhagwat Das in the year 1976 and therefore, in my opinion, the learned Courts below erred in law in holding that the plaintiff became owner of the suit property by virtue of unregistered document, i.e., sale deed dated 10-3-1984. The substantial questions of law Nos. 1 and 2 are answered that plaintiff has not proved his title on the suit land. So far as substantial question of law No. 3 is concerned, the learned Counsel for the appellant has failed to point out that the property is of temple and therefore, substantial question of law No. 3 is answered accordingly.
7. On going through the judgment of learned Courts below, it is gathered that the plaintiff is in possession of the suit property for a considerable long period and he is in settled possession. Though this fact has been denied by the defendant but the learned Courts below after appreciating the evidence gave finding of fact that the plaintiff is in settled possession of the suit property. The contention of learned Counsel for the appellant/defendants that defendants are in possession as they prepare cow dung cack (kande) and they also throw garbage on the suit land, would in itself does not constitute their possession. It has come in the evidence and learned both the Courts below gave categorical finding that the plaintiff is possessing the suit property which is a finding of fact. Thus, in my opinion, the suit for injunction of plaintiff is required to be decreed and the decree of injunction passed by learned Courts below is hereby affirmed. In this context, reliance can be placed on the decision of Pratap Rai N. Kothari v. John Braganza, (1999) 4 SCC 403.
8. In the result, appeal succeeds in part and the suit of the plaintiff for declaration of his title is dismissed, however, the decree of injunction passed by learned Courts below in favour of plaintiff is hereby affirmed. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs throughout.