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Judgment
K.S. Jhaveri, J.—By way of this appeal, the original Defendants-Respondents have challenged the judgment and decree dated 19.9.1997, passed by the 2nd Joint District Judge, Banaskantha at Palanpur, in Regular Civil Appeal No. 66 of 1983, whereby the learned judge has allowed appeal and reversed the judgment and decree dated 18.7.1983 passed by the learned Civil Judge(S.D), Deodar, in Regular Civil Suit No. 3 of 1980.
The facts of the present case are that the original Plaintiffs are the owners and occupiers of land Survey No. 226 divided into two parts totally admeasuring 24 acres 25 gunthas. The Defendant without any right in the said lands seeks to trespass over one portion of this land on the southern side. Therefore, the Original Plaintiff filed Civil Suit No. 3 of 1980 before the Civil Judge (J.D.), Deodar for permanent injunction, permanently restraining the Defendant from disturbing the possession of the Plaintiff. After filing the suit as the original Plaintiff had expired, the legal heirs of original Plaintiff were brought on record. The Defendant had filed his written statement. The Trial Court vide judgment and decree dated 18.7.1983, partly allowed the suit and granted permanent injunction in favour of the Plaintiffs restraining the Defendant, his servants and agents etc. from making any kind of hindrance in 12 Acres 25 Gunthas of land bearing Survey No. 226 as well as from making damage to the crops-mentioned in the plaint.
2.1. Against the said order the original Plaintiffs filed Regular Civil appeal No. 66 of 1983, in the Court of 2nd Joint District Judge, Banaskantha, Palanpur. The learned Judge after considering the evidence on record, vide order dated 19.9.1997, allowed the appeal and directed that permanent injunction shall be issued restraining Respondent-Defendant from interfering with possession of the Plaintiffs over entire Survey No. 226 of village Kotarwada admeasuring 24 and 25 gunthas, except in accordance with law. Hence, this appeal.
Heard the learned Advocates for the respective parties.
Learned Advocate for the Appellant contended that the lower appellate Court has committed error in not believing the documents produced by the Defendants and has wrongly observed in paragraph No. 6 against the Trial Court that the Trial Court has written the judgment in a very clumsy manner, which is contrary to the judgment of the Hon''ble Supreme Court. Therefore, the judgment and decree passed by the lower appellate Court is required to be set aside by this Court. In support of his contentions, he relied upon the decision of B.M. Narayan Gowda v. Shanthamma (D) L.Rs. and Anr., reported in 2001 (5) SCALE 143.
Learned Advocate for the Respondents has submitted that after perusing the documents and evidence the lower appellate Court has reversed the judgment and decree of the Trial Court. Therefore, No. interference is called for.
The appellate Court while considering the dispute between the parties has framed the issue as to who was in possession of the southern side of land Survey No. 225 around the time the suit was filed on 19.1.1980, in the backdrop of facts narrated in paragraph No. 6 and 7.
While admitting this matter, the following question of law were framed by this Court, which were required to be answered by this Court.
Whether the finding of the lower Appellate Court about the Plaintiffs possession is vitiated on account of non consideration of oral evidence adduced by the Defendant-Appellant.
(2) Whether the finding of the lower appellate Court is based upon misinterpretation of documentary Evidence.
The crucial question which required to be considered in this matter is Exhibit-49, which is the evidence of the Plaintiff, along with Exhibits 51, 56, 57.
Before proceeding with the matter, the following aspects which emerge from the record are required to be taken into consideration:
The land in question was mortgaged with the Plaintiff. However, subsequently the said land was bifurcated between the two brothers, but in Exhibits 56 and 57 the name of the Plaintiffs is shown in the revenue record.
The lower appellate Court while considering the evidence in the form of cross-examination has observed that nothing could be elicited from the witness of the Plaintiff which would support the case of the Defendants.
The lower appellate Court also considered the Exhibits 67,70 & 88 produced by the Defendants but the same were of the year 1951 and were not in the vicinity of the year of filing of the suit.
After considering the documents on record, in paragraph No. 14, the lower appellate Court has observed as under:
No. document is produced regarding lands having been mortgaged. Since name of Defendant Vashram and Moti Bechar appear in ?Khetarwari Patrak? Ex.70 which also mentions land having been mortgaged to Khema Bhuta, Court may believe the say regarding lands being mortgaged to Khema Bhuta. The Record Keeper who claimed to have produced original ?Khetarwari Patrak? during his evidence Ex.88 stated that last entry in the register was of 4.12.1951. Thus, entry Ex.70 mentioning the mortgage to Khema Bhuta is of period prior to December 1951. Defendant''s own case is that thereafter part of the land was redeemed. Defendant Vashram in his oral evidence Ex.69 stated in paragraph 4 that ?I gave popat (brother of original Plaintiff Masaji) Rs. 400/- to redeem the land and have taken receipt thereof?. This receipt is not produced. No. writing recording redemption is produced by the Defendant. In the absence of such documentary and corroborative evidence, say of Defendant about land having been redeemed is not believable particularly having regard to overwhelming evidence produced by Plaintiff about possession over the entire portion of Survey No. 226.
After perusing the order of the trial Court, the lower appellate Court has found that the trial Court has committed error. In Paragraph No. 15, 16, the lower appellate Court has observed as under:
Reason advanced by the learned trial Judge for rejecting the Plaintiff''s claim ? except for one portion of Survey No. 226 for which there is No. dispute whatsoever is that both the parties have attempted to tamper with record kept by Talati and other Government offices and that (paragraph 29 of the impugned judgment) ?neither the Plaintiff is truthful, nor the Defendant is truthful?. It is further observed that while it is not possible to clearly hold who among the parties have done the tampering but that ?it is my belief that both have made such attempts? and that ?both are jointly responsible for the offence?. So far as Plaintiff is concerned observations by the learned trial Judge appear to be based on evidence of Sherkhan (Ex.106), Talati of village Kotarwada. Sherkhan in his evidence produced 7/12 extract of survey No. 226 for the period 1954-55 to 1963-64. He stated that in column No. 2 ?mentioning other rights? page No. 312 and 313 of the relevant register were found ?struck by some sticky substance? and that it was not possible to decipher whether there was a previous writing. He could not say as to in what circumstances this was done ? probably because he joined duties as Talati only on 17-6-1979; he however stated that whatever previous writing may have been there would relate only to entry No. 30. As to this entry he said there were stains and writing below the stains were removed with some substance, but he could still read the word ?giro? meaning mortgage. Copy of entry No. 30 and 31 is produced at Ex.102. This entry No. 30 mentions that Khema Bhuta had obtained possession of lands including Survey No. 226 from the Jagirdar many years ago. Assuming that this entry (also produced by Plaintiff at Ex.53) was tampered, there still remains Ex.52 an extract of village Form 6, entry No. 219/29 which is to the same effect I.e. name of Koli Khema Bhuta is entered as ?occupier? in respect of lands including Survey No. 226. Besides, if details regarding lands having been mortgaged to Khema Bhuta had been struck off, it hardly makes any difference on the question of possession since as per Defendant''s case also the entire area of Survey No. 226 was mortgaged and he redeemed portion thereof 15 years prior to his evidence which works out to the year 1965(evidence of Defendant Vashram Ex.69,para-2), a fact which he has not been able to substantiate. Since this Court has left the question of ownership of the land open and confined the scope of the suit to that being relating to possession, nothing turns on entry No. 30 said to have been tampered with. The Talati Sherkhan (ex.106) admitted during cross examination:
It is true that from the fact that there is tampering, it cannot be said that survey No. 226 is of the ownership of Defendant. It is true that except for entry 30 in of village form 6 Register there is No. other endorsement to show that Survey No. 226 is of the ownership of Defendant?.
As to possible tampering at the instance of Defendant, there are observations in paragraph 8 of the judgment of Civil Misc. Appeal No. 38 of 1980 (arising from order of trial court at interlocutory stage) delivered by the then District Judge on 10-9-80 (kept in file ''B''). the observations are to the effect that original register Mark 27/1 of Khetarwari Patrak clearly showed that ?the names of the Defendant and his ancestors have been clearly over-written and the names of Plaintiff''s ancestors have been clearly deleted?. Mark 27/1 remained un-exhibited and hence this Court cannot make any comment about this. Fact remains that copy of an extract from this register produced at Ex.70 contains the names of Koli Vashram Akha and Moti Bechar and also shows the entire Survey No. 226 as having been mortgaged to khema Bhuta. From the evidence of Record keeper of the office of DILR at Ex.88 it becomes apparent that this entry has been made prior to 4-12-1951.
In view of the above, I am of the opinion that the lower appellate Court has rightly held that on the date of the filing of the suit the immediate document is at Exhibit 51, which clearly establishes the possession of the Plaintiff-Respondent herein.
In view of the above discussions, both the question are answered in negative. More particularly on appreciation of documentary evidence and oral evidence. 14. In the premises aforesaid, I do not find any merits in this appeal. The appeal is therefore, dismissed. Interim relief stands vacated.
In view of order passed in main matter, the Civil application would not survive and the same is accordingly disposed of.