Khem Chand vs Dungar

Arun Palli, J.

CM No. 417-C of 2014

Learned counsel for the applicant/appellant prays that he be permitted to withdraw the present application.

Dismissed as withdrawn.

RSA No. 2552 of 2013 (O & M)

Suit filed by the plaintiff was dismissed by the trial Court vide judgment and decree dated 23.08.2010. Appeal preferred against the said decree failed and was accordingly dismissed by the learned First Appellate Court vide judgment and decree dated 28.02.2013. That is how the plaintiff is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

In short, the case set out by the plaintiff was that Veera was the owner in possession of the land as depicted in para No. 1 of the plaint comprised in rectangle No. 179 and 200. It was pleaded that Veera converted the said land into plots. And she sold vide sale deed No. 855 dated 28.07.1969, sale deed No. 326 dated 04.06.1971, sale deed No. 144 dated 19.05.1973, different portions/plots to defendant No. 1 and elders of defendants No. 2 to 6. It was maintained that in the sale deed Veera had mentioned about a passage to access her land and also that the defendants would have no objection in this regard. Similarly, she further sold some land vide sale deed No. 403 dated 17.09.1974 to Munshi and Megha. It was claimed that it was from this land, plaintiff had purchased 1/4th share vide sale deed No. 658 dated 23.05.2002 and a mutation was accordingly entered in his favour. Still further, Veera had sold land out of rectangular No. 200 vide sale deed No. 132 dated 28.05.1973 in favour of Chiranji Lal. It was averred that Megha and Dalip had sold half share of land in favour of son of the defendants No. 1 and 2, vide sale deed dated 29.09.2004. It was asserted that the defendants were interfering in the passage of the plaintiff to his land and the plaintiff had to pass through the doll of defendants to reach a common path on the northern side. Thus, it was claimed that the plaintiff was entitled to declaration that he had indeed a right to go through two karam wide passage to access his land through the doll of the defendant.

Defendants No. 1 to 3 and 6, pleaded inter alia, that in sale deed No. 144 dated 19.05.1973, it was wrongly recited that the defendants would not interfere in the passage and the same was based on misrepresentation and fraud as defendants had paid full consideration to Veera and no agreement had been entered into between Veera and defendants and, thus, plaintiff had no right to pass through the fields of the defendants. Further, plaintiff had another passage to go to his fields.

On an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that Veera was owner in possession of land measuring 131 kanals 2 marlas. Sale deeds Ex. P2, Ex. P3, Ex. P4 and Ex. P5 revealed that Veera had sold her land to plaintiff, defendants and different other persons. In the sale deed No. 144, it was recited that Veera would have a right to pass through the land of the defendants to reach her fields. But viz-a-viz the passage, there was no mention in the said sale deed. It was observed that in none of the sale deed it was mentioned that plaintiff/purchaser would have a right to pass through the land of the defendants except sale deed No. 144 between Veera and the defendants. Raidas had purchased the land in dispute from Veera and the said sale deed did not contain any such condition or a right. Concededly, the plaintiff had purchased the suit property from Raidas, however, the said sale deed was not produced on record. In any case it was observed that once no such right was transferred to Raidas by Veera, Raidas was hardly in a position to transfer any such right to the plaintiff. Still further, Partap Singh Patwari (PW 2) admitted that the plaintiff had another passage to access his fields and the same did find mention even in the revenue record. That being so, learned trial Court dismissed the suit.

Being dis-satisfied with the said decree, plaintiff preferred an appeal. Learned First Appellate Court reviewed the matter in issue, evidence on record and on an analysis thereof, found itself in concurrence with the view drawn by the learned trial Court and the findings recorded in support thereof. It was reiterated that there was a condition in sale deed Ex. P4 that the defendants would allow Veera to go through their fields. However, Veera sold some land to Raidas vide Ex. P5 and Raidas sold some share of his land to the plaintiff. Surprisingly, though the plaintiff was seeking a declaration that he had a right to use 2 karams wide passage in the fields of the defendants in rectangular No. 179, killa No. 20/2, yet he did not place on record the sale deed No. 658 dated 23.05.2002 vide which he had purchased the land from Raidas. Ex. P5 was the sale deed vide which Raidas had purchased land from Veera and the said sale deed did not contain any condition or covenant. Raidas could not have transferred a better title than he had. Resultantly, the learned First Appellate Court dismissed the appeal.

I have heard learned counsel for the appellant at length and examined the judgments rendered by both the Courts below. Learned counsel for the appellant could not show or point out as to how the courts below were judicially perverse or contrary to the position on record. That being so, no ground, least plausible in law, exists to interfere with the decrees being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration.

No other point was urged.

Appeal being devoid of merit is dismissed.