Banwari vs Ram Pratap

Arun Bhansali, J.—This second appeal is directed against judgment and decree dated 25.04.2011 passed by Additional District Judge, Nohar, District Hanumangarh, whereby, the appeal filed by the respondent has been allowed and the judgment and decree dated 02.03.2009 passed by Civil Judge (Senior Division), Nohar, District Hanumangarh has been set aside. The appellant-plaintiff filed a suit on 07.12.2004 to the effect that in village Nimla he owns a plot, regarding which, a Patta has been issued; for last 30 years he was in possession of the said plot without any disturbance and a house has been constructed thereon; Gram Panchayat, Nimla had issued a Patta dated 12.09.1971 after amount was deposited by him under receipt No. 185 on 12.09.1971; the defendant has illegally trespassed on the said land and for a last few days he was illegally excavating gypsum and was selling the same. It was prayed that the defendant be evicted from the suit property and possession be ordered to be handed over to him.

A written statement was filed by the respondent-defendant denying and disputing the averments made in the plaint; it was claimed that the land in question was his khatedari land and a report in this regard was issued by the Patwari and the plaintiff has no locus standi to file the suit. Ultimately, it was prayed that the suit be dismissed.

The trial court framed five issues. On behalf of the plaintiff three witnesses were examined and the Patta was exhibited as Exhibit-1 and on behalf of the defendant, he himself was examined and three documents were exhibited.

After hearing the parties, the trial court came to the conclusion that Patta exists in favour of the plaintiff and the same has not been got declared as illegal/fraudulent by filing suit or taking proceedings and the land was being utilized by the plaintiff and he was entitled to stop the interference by the defendant. The issues relating to maintainability of the suit and locus standi of the plaintiff were also decided against the defendant and the suit was decreed in favour of the plaintiff.

Feeling aggrieved, the defendant filed first appeal and the first appellate court after hearing the parties came to the conclusion that the suit is based on the Patta dated 12.09.1971 and the receipt dated 12.09.1971 has not been produced. In the affidavit dated 07.07.2008 the plaintiff has indicated his age as 40 years, meaning thereby, he was in possession of the suit property when he was aged 10 years. The Patta (Exhibit-1) was issued on 12.09.1971 and the application for the same was filed on 28.08.1968 and if the age indicated in the affidavit is correct, the plaintiff was aged 1 month on 28.08.1968 and about three years on 12.09.1971. A copy of the plaintiff''s school transfer certificate was filed, wherein, his date of birth was shown as 15th April, 1961 and, even if, the same was also taken as correct on the date of filing application, he was aged 7 years and on the date of issuance of Patta he was 10 years old i.e. he was not major, the Patta has not been issued through his father or natural guardian. The boundaries indicated in the Patta also do not match with the land in dispute and based on the documents produced by the defendant, the appellate court found the Patta as doubtful and, therefore, came to the conclusion that it cannot be said that the appellant was excavating the gypsum from the plaintiff''s land and on reaching the conclusion that the so called Patta was apparently not issued according to law, it set aside the judgment and decree passed by the trial court.

It was submitted by learned counsel for the appellant that no dispute was raised by the respondent before the trial court about the validity of the Patta and, therefore, it was not open for the first appellate court to adjudicate on the validity of Patta and come to a conclusion that the Patta was doubtful and/or the same was not issued properly and, as such, the finding of the first appellate court is vitiated.

I have perused the judgments passed by both the courts below and have considered the submissions made by the learned counsel for the appellant.

The learned trial court presumed the Patta (Exhibit-1) to be valid and effective and observed at para 5 of the judgment that if the Patta was fraudulent, the defendant would have challenged the same before the Court or by appropriate proceedings, however, he has failed to prove the same to be fraudulent and the Patta has been issued after undertaking the prescribed procedure and, therefore, it cannot be said to be illegal or fraudulent.

The above observations made by the trial court clearly indicate that the plea was raised by the defendant during course of submissions and the same was turned down by the trial court. The consideration made by the first appellate court regarding issuance of Patta in favour of the appellant at the age of 10 years and application having been made by him at the age of 7 years based on school transfer certificate produced by him before the first appellate court and, therefore, the issuance of Patta and the procedure adopted therein was apparently dubious, cannot be said to be without any basis. Further, the appellant had failed to produce the receipt of the same date, which was a fundamental document in support of the said Patta. Once the entire suit was based on the Patta in favour of the plaintiff and when the appellant himself failed to prove, in the opinion of first appellate court, the rest of the claim has no legs to stand.

Besides the above, on the evidence on record, the first appellate court found that the boundaries indicated in the Patta did not match with the disputed land and in view of the documents of the respondent, it was proved that the respondent was not in possession of any land, which belonged to the appellant. The findings recorded by the first appellate court though reversing the judgment passed by the trial court on the validity of the Patta cannot be said to be perverse so as to call for any interference in the second appeal. No substantial question of law is involved in the appeal. Consequently, the second appeal and the stay application are dismissed. No costs.