Judgment:
Prafulla C. Pant, J.
1. This appeal preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the Judgment and decree dated 20.11.1998, passed by V Additional District Judge, Nainital, in civil appeal No. 97 of 1995, whereby said appeal has been dismissed, confirming the judgment and decree dated 11.12.1995, passed by Civil Judge(Jr. Div.) Nainital, in civil appeal No. 72 of 1994.
2. Heard learned Counsel for the parties and perused record.
3. Brief facts giving rise to this appeal are that plaintiff/appellant instituted suit No. 72 of 1994, for a decree of permanent injunction against the defendant/respondent, restraining him from interfering in the peaceful possession of the plaintiff, over plot No. 276 situated in village Pandey Gaon, Bhimtal, District Nainital. It is pleaded by him that the parties to the suit are related to each other by following pedigree;
(Common ancestor)_________________|_________________| |Mohan Giri Manorath Giri| ______________|___________Hari Giri | | || Mahesh Giri Hira Giri Gaura GiriDeewangiri ___________________________(plaintiff/appellant) | | |Pooran Giri Narendra Giri Bhuwanant(defendant/respondent) Giri
4. It is further, pleaded by the plaintiff in the plaint that the property in suit i.e. plot No. 276 was owned and possessed by his grandfather after it came into his share in partition. In the year 1990, when the defendant's uncles Mahesh Giri and Gaura Giri raised dispute relating to said plot No. 276, the matter was amicably settled on 16.07.1990, and a deed was executed to that effect leaving plot No. 276 in possession of the plaintiff as its owner. However, on 16.10.1994, defendant Pooran Giri started digging the land in suit for raising constructions thereon. Hence, the suit was filed seeking permanent prohibitory injunction against the defendant.
5. The defendant Pooran Giri contested the suit and filed his written statement. He admitted the pedigree but denied that plot No. 276 had gone into the share of the plaintiff's grandfather as pleaded by him. It is pleaded by the defendant that plot No. 276 came into the share of his grandfather Manorath Giri and since then the defendant has been possession over the land in suit from the time of his grandfather. It is further, pleaded by the defendant that in plot No. 276, there was an old cow-shed which got demolished due to lighting in the year 1993. He has further pleaded that his uncles Gaura Giri and Mahesh Giri have no concern whatsoever in plot No. 276. It is further pleaded by the defendant that after getting sanctioned map from Town Area Committee, Bhimtal, the defendant started construction in plot No. 276. Lastly it is pleaded that suit filed by the plaintiff is liable to be dismissed. The trial court, on the basis of plea of the parties, framed following seven issues;
(i) Whether the plaintiff is owner of the disputed plot No. 276 by way of partition?
(ii) Whether the defendant is owner of the disputed plot No. 276 by way of private partition?
(iii) Whether the plaintiff is in possession over the suit property?
(iv) Whether the defendant is in possession over the suit property?
(v) Whether the defendant has caused any interference in suit property as alleged in para 5 of the plaint? If so, its effect?
(vi) Whether the suit is under valued and court-fee paid is insufficient?
(vii) To what relief if any, the plaintiff is entitled?
6. After recording evidence and hearing the parties the trial court decided issue No. 1,2 and 6 in favour of the plaintiff, and issue No. 3, 5, 4 and 7 in favour of defendant and dismissed the suit. Aggrieved by said judgment and decree dated 11.12.1995, passed by Civil Judge (Jr. Div.) Nainital, the plaintiff preferred civil appeal No. 97 of 1995 before the District Judge, Nainital. Said appeal was heard and disposed of vide impugned order judgment and decree dated 20.09.1998, by V Additional District Judge, Nainital, dismissing the same and affirming the decree passed by the trial court. Hence, this second appeal was filed by the plaintiff before Allahabad High Court on 22.12.1998. The appeal is transferred to this Court under Section 35 of U.P. Reorganization Act, 2000 (Central Act 29 of 2000), to this Court for its disposal.
7. This Court vide its order dated 06.06.2003, admitted the second appeal on substantial question of law as formulated at serial No. 1 of the memorandum of appeal. Said substantial question of law reads as under;
Whether the court of First Appellate court can disagree with the trial court on any issue decided by it on the basis of evidence recorded before the trial court without assigning any reason therefor
8. Answer the substantial question of law:
Admittedly the parties are related to each other as shown in the pedigree mentioned above. Plaintiff's case is that the property in suit i.e. plot No. 276 came into share of his grand father while the defendant's case is that the same came in the share of his grandfather. The evidence of partition on the record is simply oral from both the sides. However, the plaintiff has pleaded and filed a settlement deed dated 16.07.1990, showing that when a dispute raised by uncles of the defendant said deed (exh.I) executed leaving plot No. 276 in the share of the plaintiff. The deed dated 16.07.1990, (exh.I) infact is not a partition deed. Partition is pleaded by the plaintiff to have taken place 60 year before filing of the suit in 1994. The deed is of the year 1990, i.e. just 4 years before filing of the suit. Apart from this, what is most important about the relevancy of this deed for the purposes of this suit is that defendant Pooran Giri has not signed it, nor it is mentioned in the said deed that Pooran Giri has agreed to the terms of the statement mentioned in it. As such merely for the reason, two uncles of the defendant signed the deed it does not bind the defendant. It is pertinent to mention here that the two uncles namely Mahesh Giri and Gaura Giri, who have signed the deed, were not successor in title of the defendant nor have they been authorized by the defendant to sign on his behalf. As such there is no evidentiary value of the document (Exh.-I) as against defendant Pooran Giri. The first appellate court has taken note of said fact and held that the plaintiff has not proved the title over the property in suit. It is relevant to mention here that the trial court had dismissed the suit holding that though, plaintiff is the owner of the property in suit (relying on the deed dated 16.07.1990), but he could not prove his possession over it. The lower appellate court has on reassessment of evidence on record found even the title is not proved and disagreed with the trial court on said point.
9. Learned Counsel for the plaintiff/appellant argued before this Court that the lower court has reversed the finding of the trial court on the point of title without sufficient reason. I have gone through the entire record and also impugned order challenged before this Court. The first appellate court has given detailed reasons, and discussed every piece of relevant evidence on record, before coming to the conclusion that the plaintiff has failed to prove the title over the plot No. 276.
10. Shri B.P. Nautiyal, Learned Counsel for the plaintiff/appellant drew the attention of this Court to the statement of P.W.3 Bhuwan Chandra Giri, real brother of the defendant Pooran Giri, who has adduced the evidence in favour of the plaintiff and it is contended that the lower appellate court is erred in law in discarding his evidence given in favour of the plaintiff. Why this witness is making statement against his real brother (defendant) is not difficult to be searched out. In cross-examination P.W.2 Bhuwan Chandra Giri, has stated that he is in litigation with his brother Pooran Giri (defendant) he further states in the cross-examination that he and plaintiff Deewan Giri do not want Pooran Giri be allowed to construct house in plot No. 276 he denies having any knowledge sanction of map of house, planned be constructed by Pooran Giri ,from Town Area Committee at Bhimtal. The witness states that in plot No. 276 there was a ruined building. P.W. 3 Bhuwan Chandra Giri discloses in cross-examination that in the year 1984, he had left Bhimtal after his transfer from such place. He further admitted that plaintiff Deewan Giri is in service in Kotabagh and before that he had been posted in Pilibhit,Sitapur and Almora. As such in what manner the plaintiff continued his possession over plot No. 276, is not clear.
11. Lastly it is argued on behalf of the Plaintiff/appellant that assuming for a moment partition is not proved between parties, even then the respondent has no right to raise construction over the plot No. 276 to exclude the possession of the plaintiff, and the courts below have erred in law in refusing the relief of injunction to the plaintiff. However, I am unable to accept the argument advanced on behalf of the plaintiff/appellant for the reason that in a case of unpartitioned property the plaintiff cannot seek injunction against co-owner, without seeking relief of partition of the property. Otherwise also it is nobody's case that the property is jointly owned by the parties and the injunction is not sought on that ground. What is not pleaded cannot be prayed by the plaintiff/appellant.
12. For the reasons as discussed above this Court does not find any illegality in the impugned judgment and decree passed in lower court. Accordingly substantial question of law stands answered in favour of the defendant/respondent.
13. And, this second appeal is dismissed. However costs easy.