Chhote and Another vs Karna and Others

Hemant Gupta, J.—The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court whereby the suit for permanent injunction seeking to restrain the defendants from taking forcible possession was dismissed in appeal. The plaintiffs-appellants filed suit for injunction in respect of the land measuring 2 kanals 19 marlas comprising in khewat No. 81 and 85-Min, Khata Nos. 119 and 123, Rect. and Killa No. 37//8/2 and 8/4 situated in the revenue estate of village Chatia Qila as per jamabandi for the year 1979-80. The plaintiffs claimed that the defendants are encroachers on the said land owned by the plaintiffs. Therefore, the defendant should remove the encroachments and hand over possession of the land to the plaintiffs. The defendant No. 1 and 2 admitted claim of the Plaintiff in the written statement dated 20.7.1983, whereas the defendant No 4 and 5 asserted possession over the land in question situated within lal dora asserting that their houses are in existence since long from the time of their ancestors. They also raised plea that in any case, they have perfected their possession into title being in possession for more than 12 years. It was also pleaded that the defendant No 1 and 2 executed sale in favour of Smt. Nawab Kaur on 15.7.1983 and that the defendants are purchasers from her.

The learned trial Court decreed the suit partly granted decree for injunction in respect of portions F.I.J.K., D.E.F.C. and ABCD, as shown in red colour in the site plan. In respect of the other land, defendants No. 4, 5 and 5-A were restrained from interfering in possession of the plaintiffs and defendants No. 6 to 8. However, in appeal the learned first Appellate Court dismissed the suit holding that the plaintiff has failed to prove that the land in Jamabandi Ex. P-2 and as shown in Ex. P-3 is the same which is in possession of the defendants. The Court found that the site plan has been prepared by PW 2 Kailash Bhushan without consulting revenue record. Thus, the suit qua possession in respect of the aforesaid land was dismissed. The relevant finding of the learned first Appellate Court is as under:-

10... In other words there is no evidence on the file which could tally the suit land detailed in Ex. P.2 which has been shown in Aks-shajra Ex. P.3, is the same which is in possession of defendants No. 1 to 6 and of which the map Ex. P.1 was prepared by Kailash Bhushan. Unless or until the land in dispute is tallied with Ex. P.1 or with the land which is in possession of defendants No. 1 to 6, till then it cannot be said that the land which is in possession of defendants No. 1 to 5 is the same land for which this suit has been filed on the basis of Ex. P2. Further it cannot be answered whether the plaintiffs and the proforma-defendants are owners of the same, secondly, if it is proved that both the land tallied with each other than it has to establish that admittedly defendants No. 1 to 6 have been coming in possession of this land, whether their possession is old, ancient, from the time of their fore-fathers, and what is the effect of the same.

The main crux of my discussion is that the plaintiffs who are now appellants have totally failed to establish that the land which they have alleged in the plaint of which they are owners in the revenue record Ex. P2 is the same which is in possession of defendants No. 1 to 6 Map Ex. P1 of which was prepared by Shri Kailash Bhushan PW2.

The claim of the plaintiff is based upon the map prepared by PW-2 Kailash Bhushan. However, the learned first Appellate Court has discussed the evidence and found that the plaintiffs have failed to prove that land in possession of defendants No. 1 to 6 is the same land as mentioned in Jamabandi Ex. P-2, for which suit has been filed. Such findings recorded by the learned first Appellate Court is a finding of fact. It cannot be pointed out that any evidence has been misread or not taken into consideration.

In view of the said fact, I do not find any substantial question of law arises for consideration of this Court. Consequently, the regular second appeal is dismissed.