Karam Chand and Others vs Balbir Singh

L.N. Mittal, J.—This is second appeal by legal representatives of plaintiff Lachhmi Devi (since deceased), having remained unsuccessful in both the courts below.

Lachhmi Devi filed suit against Balbir Singh - defendant- respondent for permanent injunction alleging that the plaintiff purchased the disputed plot vide registered sale deed dated 28.08.1973 from Inder Singh and since then, plaintiff is owner in possession thereof and khasra girdawri has also been entered in her favour. The plaintiff also raised boundary wall of the disputed plot. The defendant, having no concern with the disputed plot, intended to interfere in plaintiff''s peaceful possession thereof. The defendant has no right to do so.

The defendant inter alia pleaded that plaintiff has filed suit by describing wrong dimensions and boundary and in fact, the plaintiff wants to interfere in peaceful possession of the defendant over his plot bearing khasra No. 59//23/2 measuring 11 marlas being 4/9th share of 01 kanal 04 marlas land of the said khasra. Defendant is owner in possession of the said plot having purchased it from Darshan Singh and Gurdev Kaur vide registered sale deed dated 11.11.2001. The defendant constructed boundary wall of the said plot. The defendant had already filed injunction suit against plaintiff and others regarding the said plot.

Learned Civil Judge (Junior Dvision), Barnala, vide judgment and decree dated 04.08.2006, dismissed the plaintiff''s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Barnala, vide judgment and decree dated 11.12.2008. Feeling aggrieved, legal representatives of plaintiff have preferred the instant second appeal.

I have heard learned Counsel for the appellants and perused the case file.

Learned Counsel for the appellants vehemently contended that plaintiff purchased the disputed plot being part of khasra No. 59//19/2 vide sale deed dated 28.08.1973 and is therefore owner in possession thereof. The contention cannot be accepted. The plaintiff has failed to establish that disputed plot is part of khasra No. 59//19/2, in which the plaintiff purchased the plot. On the other hand, the defendant purchased his plot out of khasra No. 59//23/2. It was for the plaintiff to establish that she is owner of the disputed plot, which she described in the plaint by boundary. The plaintiff may be owner of a plot being part of khasra No. 59//19/2, but it cannot be said that plaintiff is owner in possession of the disputed plot described by boundary in the plaint.

Learned Counsel for the appellant contended that one Lajwanti has also purchased a plot out of khasra No. 59//19/2 vide sale deed dated 28.08.1973 and suit filed by Lajwanti against defendant has been decreed and plaintiff''s plot is shown to be adjoining the plot of Lajwanti. On the basis of this contention, the appellants cannot succeed. In first appeal preferred by defendant herein against judgment and decree of the trial court, passed in the suit instituted by Lajwanti, judgment and decree of the trial court were modified by first appellate court and defendant Balbir Singh was restrained from interfering in possession of plaintiff Lajwanti over plot in khasra No. 59//19/2 and at the same time, it was directed that Lajwanti shall also not interfere in possession of the defendant over khasra No. 59//23/2 and both the parties to the said appeal were directed to get their plots demarcated. Thus, on the basis of judgment and decree passed in the suit instituted by Lajwanti, the appellants in the instant case cannot derive any benefit. On the other hand, suit filed by defendant Balbir Singh against Lajwanti and others has been decreed by the trial court and first appeal in the said case is stated to be pending, as stated by learned Counsel for the appellants.

Plaintiff''s own statement in the instant case has completely shattered her version. The plaintiff stated in cross-examination that she did not know when possession of the disputed plot was delivered to her. However, she later on added voluntarily that possession was delivered to her at the time of registration of the sale deed. The plaintiff, however, also deposed that suit plot was lying vacant and site plan thereof was got prepared by her husband in her absence. The plaintiff further deposed that she had seen the disputed plot about three years ago and she did not know even the boundaries thereof. The plaintiff also stated that demarcation of her plot was made by Tehsildar about three years ago. However, the said demarcation report was not proved by examining the Revenue Officer. The plaintiff did not even know who was the Quanungo present at the time of conducting said demarcation. The plaintiff also stated that defendant had encroached upon the disputed plot 3-4 years ago. The plaintiff also added that defendant encroached upon the aforesaid plot recently. The plaintiff did not make any complaint against the defendant regarding the alleged encroachment. The plaintiff also admitted boundaries of the disputed plot in possession of the defendant. Thus, plaintiff''s own testimony has demolished her entire case.

Both the courts below, after appreciating the evidence, have come to concurrent finding that plaintiff is not proved to be owner in possession of the disputed plot. The said finding is not shown to be perverse or illegal so as to call for interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is found to be without any merit and is accordingly dismissed in limine.