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CASE NO.: Appeal (civil)  2836 of 2006

PETITIONER: SUBHAGA & ORS.                                   

RESPONDENT: SHOBHA & ORS.                                    

DATE OF JUDGMENT: 07/07/2006

BENCH: S.B. SINHA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  (ARISING OUT OF S.L.P. (C) NO.13705 OF 2003)

P.K. BALASUBRAMANYAN, J.

1.              Leave granted.   

2.              This Appeal by Special Leave is by the legal  representatives of the original plaintiff in O.S. No.1326 of  1957 on the file of the Munsif, Mohammadabad Gobarn at  Azamgarh.  The suit was one for a mandatory injunction  directing the defendants in the suit to demolish further  constructions put up by them and to fill up a well dug by  them in the property claimed to belong to the plaintiff.  The  plaintiff claimed title and possession over the suit property  which was described in the plaint and got demarcated in a  sketch.   The claim of the plaintiff was that the construction  had been put up in plot No. 1301/1 Ba  in Village Sarhan  Kolla Pargana Mahal, District Azamgarh.  The defendants  resisted the suit essentially on a plea that the constructions  put up by them did not lie in plot No. 1301.  They, of course,  denied the title and possession claimed by the plaintiff over  the portions in which the constructions and the well stood.  

3.              The suit had a chequered career.  There were  repeated remands of the suit.  What is seen is that  ultimately the question boiled down to that of identification  of the suit property with reference to the disputed portion.   Ultimately, in the present round, the trial court decreed the  suit holding that the plaintiff was the owner of the suit land  which had been identified on the spot and was hence  entitled to the reliefs claimed.  An appeal filed by the  defendants was dismissed holding that the disputed  constructions lay in the suit property described in the  plaint, that the plaintiff had title to it and that the trial court  was hence right in decreeing the suit.  Thus, the appeal filed  by the defendants was dismissed.  The defendants filed a  Second Appeal before the High Court of Allahabad.  The  High Court upheld the finding rendered by the courts below  that the plaintiff was the exclusive owner of plot No. 1301/1  Ba.  The High Court found that there was no illegality in the  approach made by the courts below in arriving at that  finding and the finding was based on the evidence on record.   But in spite of this finding, the High Court reversed the

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judgment and decree of the first appellate court and  dismissed the suit on a finding that there was no proper  identification of the suit property by the plaintiff either in  the plaint or at the spot and since the boundaries cannot be  ascertained without surveying the adjoining plots, no decree  could be granted to the plaintiff as was done by the courts  below.   The Second Appeal was thus allowed and the suit  was dismissed.  This is challenged in this appeal by the legal  representatives of the plaintiff.

4.              It is contended on behalf of the appellants, that  the High Court had exceeded its jurisdiction under Section  100 of the Code of Civil Procedure, 1908 in interfering with  the finding of fact rendered by the courts below that the suit  property had been adequately identified and it has been  shown that the disputed constructions were in the portion  that belonged to the plaintiff.   Though we find some merit in  this submission raised on behalf of the appellants, we do not  think it necessary to rest our decision on this ground.   

5.              We find that a commission was issued for  demarcating the suit plot No. 1301/1 Ba and the  Commissioner showed the disputed area in the map  prepared by him.  The lower appellate court while  considering the question of identification had referred to the  description of the boundaries in the plaint, the admissions  of one of the defendants as DW1 and the report and plan  submitted by the Commissioner. That Court also noticed  that the plaintiff had given specific boundaries of the suit  land and it was clear from the sketch prepared by the  Commissioner that the disputed constructions lay in the  suit land and that it belonged to the plaintiff.  This was the  basis of the affirmance of the decree in favour of the plaintiff  by the lower appellate court.  In Second Appeal, the learned  Judge of the High Court, after referring to the description of  the boundaries in the plaint, simply discarded the sketch  prepared by the Commissioner in the presence of the parties  after ascertaining the plots lying as boundaries of the suit  property.  It also appears to have taken the view that  without a survey of the adjoining plots, it cannot definitely  be said that the disputed structure lies in the plot belonging  to the plaintiff, namely, plot No. 1301/1 Ba.  We think that  the High Court was not justified in interfering with the  finding of the lower appellate court and in discarding the  identification made by the Commissioner.  It must be  noticed that the suit had been remanded twice for the  purpose of identifying the suit property and such  identification had been done by the Commissioner and such  identification had been accepted by the trial court and the  first appellate court in the light of the admissions of DW1.    The vague and general reasons given by the High Court for  interfering with the decision of the first appellate court are  clearly insufficient to upset the finding on identification.   There was nothing to show that the Commissioner had not  properly identified the suit property.

6.              The High Court has also upheld the title claimed  by the plaintiff over the plot, Plot No. 1301/1 Ba.  Once we  accept the identification made by the Commissioner as was  done by the first appellate court, it is clear that the plaintiff  has the right to have the disputed construction removedand  the well filled up.  That a property can be identified either by  boundary or by any other specific description is well

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established.  Here the attempt had been to identify the suit  property with reference to the boundaries and the  Commissioner has identified that property with reference to  such boundaries.  Even if there was any discrepancy,  normally, the boundaries should prevail. There was no  occasion to spin a theory that it was necessary in this suit to  survey all the adjacent lands to find out whether an  encroachment was made in the land belonging to the  plaintiff.  In this situation, we are satisfied that the  judgment and decree of the High Court calls for interference.   We are also satisfied that the lower appellate court was  justified in affirming the decree granted in favour of the  plaintiff on the pleadings and the evidence in the case.   

7.              We, therefore, allow this appeal and setting aside  the judgment and decree of the High Court in S.A. No. 1782  of 1976, restore the judgment and decree of the trial court in  O.S. No. 1326 of 1957 as affirmed in Civil Appeal No. 112 of  1973 on the file of the Additional Civil Judges Court,  Azamgarh.  We make no order as to costs in this Appeal but  the appellants would be entitled to their costs in the courts  below.