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                                                               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.

1. 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.

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2. 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.  

3. 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

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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.

4. 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

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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.  

5. 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

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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,

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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.

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

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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.   

7. 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.