Banshi Dhar and ors. Vs. Ram Surat and ors. - Court Judgment

M. Wahajuddin, J.

1. This is a second appeal filed by the plaintiffs. Plaintiffs' suit was for injunction and in the alternative in case the Court held that the plaintiffs are not in possession, for delivery of possession as such.

2. The plaintiffs' stand was that the plaintiffs are the owner in possession of the disputed plot and the trees standing thereon and the mutation is wrong and the land was wrongly recorded as Banjar. The defendants' case was that their ancestors had planted the trees and they were owner in possession of plot No. 49 (area 19 decimals) having trees on the same and the trees were also planted by them and further that as a matter of precaution they secured a settlement of the plot from the Gaon Sabha after the abolition of zamindari.

3. The trial Court framed a number of issues. It found in favour of the defendants and dismissed the suit. The first appellate Court also took similar view and dismissed the appeal. The findings are assailed in the second appeal.

4. The points raised are, firstly, that the Courts below did not consider certain admissions and further that the view that under Section 49 of the Consolidation of Holdings Act the plaintiffs were estopped from re-agitating the matter is erroneous; and that the trial Court also wrongly did not consider the two documents of the plaintiffs on technical consideration that they were in Urdu and their translation in Hindi was not filed- It is, further, urged during the arguments that a finding on possession as such has not been recorded by the Courts below.

5. The Supreme Court case of Ram Chandra v. Ramalingam, AIR 1963 SC 302 is an authority for the proposition that the High Court cannot interfere in the second appeal with the finding of fact and appreciation of evidence by the trial Court and the first appellate Court and in the case of Pattabhiramaswamy v. Section Hanmayya, AIR 1959 SC 57 it has been held that even an erroneous finding of fact cannot be disturbed.

6. I have gone through the judgment of the two Courts below and I find that a finding of fact has been recorded in favour of the respondents and against the plaintiffs-appellants holding that this land vested in the Gaon Sabha and was settled upon the defendants and it is they who are the Bhumidhar grove holders and the trees on the plots are their.

7. It was urged that the finding on possession was not recorded as such and the case should be remanded. I have given my anxious consideration to the arguments urged. True that finding on possession has not been recorded specifically as such, yet the matter is covered by the discussions and the findings. The Courts below found that the defendants planted these trees. They also found that there is Akar Patra 23 recording the plot with the trees in the name of the defendants, which is final. The mutation was also, in the name of the defendants and the later Khatauni is also in favour of the defendants and then the finding in favour of the defendants was given.

8. It was argued that the Courts below erred in not considering the two documents, i.e. settlement papers, namely, the entries of 1894 and 1904 concerning a few trees in plaintiffs' predecessors' name. These are very old papers and obviously those trees cannot be in existence after such long interval. Second, the mention is of old plots. Much time has elapsed and it is the latter entries which would weigh. I may also observe that the trial Court and the first appellate Court cannot be said to be in error in not considering these documents when translation in Hindi (the Court language) were not filed as required under the Rules. Suppose any document is filed in Nepali, Maliyalam, Tamil and so forth and so on, the Court cannot be expected to know all these languages as to go through the documents, that is why the rule provides that such documents should be accompanied by Hindi translation. To avoid any controversy, I have perused the documents also being equally conversant with Urdu. They are not of much help.

9. It was next urged that the finding is erroneous, as the trial Court was in confusion concerning the plaintiffs' evidence. The matter has been fully clarified and dealt with by the first appellate Court observing that even if the plaintiffs' witnesses simply stated plaintiffs to be grove-holders and not Bhumidhars as such, that would hardly make a difference because these are legal phraseologies, while what is stated as a fact has to be considered. The first appellate Court after considering the evidence as such came to the same conclusion as that of the trial Court.

10. There is one more important aspect, namely, that the plaintiffs have themselves urged that there were consolidation proceedings. Their verbal stand in evidence was that the proceedings concluded in their favour. But no documents were filed in support. The defendants also maintained that there were such proceedings and they have filed Akar Patra 23 to show that actually the decision concerning the plot and trees was in their favour. The decision of the consolidation courts is conclusive and final.

11. It was urged that in any case the possession is of the plaintiffs. As regards that aspect, both sides led oral evidence, defendants' witnesses rebutting plaintiffs evidence. The two Courts below came to a conclusion that the holding was vested in Gaon Sabha and was then settled with defendants. It deckled the title regarding trees in favour of the defendants. When that is the position, though not specifically, the question of possession also stands decided. Apart from that, from the aforesaid documentary evidence, which is more valuable, the defendants' possession is proved and there will be no occasion for unnecessarily prolonging the litigation by making any remand.

12. It was, further, urged that on the authority of M. Kalappa Sethi v. M.V. Laxami Narain Rao, AIR 1972 SC 2299 possession is good against all except rightful owner and when the relief claimed was of injunction, it should have been granted. Firstly, I have dealt with the question of possession, and, secondly, what has been laid down in the Supreme Court case is that possession of any person is good against all, except the rightful owner and not that it is good against, such person also.

13. When that is the legal position, I do not find any force in this second appeal and it is hereby dismissed. As no one has put in appearance from the side of the respondents, the parties will bear their own costs.