Jagdish vs Fakir Chand

J.S. Khehar, J.—(Oral) - The respondent-plaintiff preferred a civil suit praying for a decree of permanent injunction so as to restrain the defendants front alienating the suit land or from creating any charge thereupon and also for restraining the defendants from raising any construction on the suit property. The trial Court vide its judgment and decree dated 10.12.1997 decreed the suit for permanent injunction restraining the defendants from alinating the suit land and raising construction thereupon except on their own share. Dissatisfied with the decision rendered by the trial Court, the appellant-defendants preferred by the trial Court, the appellant-defendants preferred an appeal. The same was rejected on 30.1.1999 and it is against the aforesaid concurrent findings recorded by the trial Court as also by lower Appellate Court, the appellants-defendants have approached this Court through the instant regular second appeal.

The plaintiff-respondent as also the appellants-defendants are admittedly descendants of Kalu. Kalu had six sous. The plaintiffis the son of Lalji Mal and grandson of Kalu. The defendants are the sons of Het Ram and grandson of Kalu. The claim of the respondent-plaintiff in the suit filed by him was that Kalu had six sons and his property was equally divided between six sons. In due course of time, there was family settlement whereupon his properly was divided between six branches of the family. On the basis of aforesaid family settlement, each branch of Kalu''s family headed by a son came into specific possession of the property which devolved upon them from Kalu. The injunction sought by the respondent-plaintiff was in respect of the properly which came into specific possession on the basis of aforesaid family settlement. On the other hand the claim of the appellants-defendants is that the suit property is not part and parcel of ancestral property flowing to six branches of Kalu''s sons but the property which was previously owned by Jawana Singh was purchased by the defendant from Jawana Singh through a registered sale-deed Ex.DA.

According to the learned counsel appearing for the appellants-defendants on perusal of rival contentions between the parties, the dispute narrows down to determine as to whether the suit land is part of ancestral properly of Kalu or is a part of the property purchased by the appellants-defendants from Jawana Singh vide registered sale-deed Ex.DA. A perusal of Ex.DA shows that the suit property is not the same property which was purchased by the appellants-defendants from Jawana Singh. As per Ex.DA. on the south of the land purchased by the appellants-defendants, there is a chowk of the village whereas on the South of the suit property, there is land of O.P. Mahajan. On the West of the land purchased through sale-deed Ex.DA. there is covered gate (nohra) of Sheo Lala Mahajan whereas on the West of the suit land, there is land of O.P. Mahajan. Likewise, on the North of the land purchased from Jawana Singh, there is brick-lined passage (kharanga) whereas on the North of the suit land, there is house of Panna. It is, therefore, obvious that the suit land docs not conform to the description of the land purchased by the appellants-defendants from Jawana Singh. The appellant-defendants, therefore, could not establish the defence raised by them in their written statement. On the other, hand, the trial Court as also the learned First Appellate Court had returned categorical findings based on proper appreciation of the evidence produced by the respondent-plaintiff that he had been in possession of the suit land which devolved upon him through his ancestor Kalu. No submissions have been addressed by the learned counsel for the appellants-defendant to rebut the aforesaid concurrent findings recorded by the Courts below.

For the aforesaid reasons, I find no justification to interfere in the findings recorded by the trial Court as also by the learned. First Appellate Court. This appeal is, therefore, dismissed but with no order as to costs.