Kartar Singh vs Babu Lal and Others

L.N. Mittal, J.

CM No. 6881.C of 2009

For the reasons mentioned in the application which is accompanied by affidavit, delay of 3 days in filing the appeal is condoned.

RSA No. 2302 of 2009

Plaintiff Kartar Singh having lost in both the courts below is in second appeal.

Appellant Kartar Singh filed suit against Respondents for permanent injunction alleging that the Plaintiff-Appellant is exclusive owner in possession of the suit land measuring 3 kanals 5 marlas comprised of killa No. 31 in view of judgment and decree dated 5.1.1993, passed in Appeal No. 83 of 1990, titled Kartar Singh v. Jai Narain but the Defendants threatened to interfere in possession of the Plaintiff over the suit property. Accordingly, the Plaintiff-Appellant filed suit for permanent injunction restraining the Defendants from interfering in Plaintiff''s possession over the suit property in which Baithak and go down also stand constructed.

Defendants No. 1 and 2 Babu Lal and his wife Pramila Devi contested the suit and broadly denied the plaint allegations. It was pleaded that they were not party to the decree dated 5.1.1993 and therefore, the said decree has no bearing against them. It was denied that the Plaintiff is in exclusive possession of the suit property. Defendants claimed to be in exclusive possession thereof. It was pleaded that Baithak and go down were constructed by Duli Chand father of Plaintiff and Defendant No. 1. There is residential house of Defendants on western side of said Baithak and go down whereas the Plaintiff recently constructed his house on northern side of the house of the Defendants. Land of khara No. 179/16/2 and 179/31 is joint land of the parties. Various other pleas were also raised.

Defendants No. 3 to 6 were proceeded ex parte.

Babu Lal also filed a suit against Kartar Singh alleging that Babu Lal has half share in the suit property by virtue of civil court decree dated 15.5.1982 passed in civil suit No. 220/82 titled Babu Lal v. Kartar Singh. He also sought permanent injunction.

Both the suits were dismissed by learned Additional Civil Judge (Senior Division), Rewari vide common judgment and decrees dated 26.2.2004. Only Kartar Singh preferred first appeal in his suit. Learned Additional District Judge, Rewari vide judgment and decree dated 17.11.2008 dismissed the said appeal. Feeling aggrieved, Kartar Singh has filed the instant second appeal.

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

Learned Counsel for the Appellant vehemently contended that Plaintiff-Appellant is exclusive owner in possession of the suit land in view of decree dated 5.1.1993 passed in Appeal No. 83 of 1990, titled Kartar Singh v. Jai Narain. The contention cannot be accepted because Defendants herein were not party to the said decree. Consequently, the said decree has no evidentiary value against the Defendants. On the other hand, Plaintiff-Appellant Kartar Singh had only 1/3rd share in the suit land as per sale deed dated 22.1.1959. However, the Plaintiff also claimed to be exclusive owner of the suit land and thus, he has not come to the court with clean hands and is, therefore, not entitled to discretionary relief of permanent injunction. Moreover, both the courts below after discussing evidence in great detail have come to concurrent finding that both the parties are in joint possession of the suit property. The said finding is based on proper appreciation of evidence and cannot be said to be perverse or illegal so as to warrant interference in second appeal. The said finding is also not based on misreading or misappreication of evidence. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine.