Khilan Prasad vs Santosh

Rohit Arya, J.—This appeal by the plaintiffs'' u/s 100 CPC is directed against the concurring judgment and decree dated 28/08/2006 passed in civil appeal No. 18A/2006 by II Additional District Judge (Fast Track Court), Basoda District Vidisha affirming the judgment and decree dated 07/04/2004 passed in civil suit No. 90A/2001 by I Civil Judge, Class-II, Basoda, plaintiffs'' suit for permanent injunction has been dismissed.

One Jagannath Prasad besides plaintiffs'' had two more sons, namely; Avadhnarayan and Harishankar. All the three, i.e., Jagannath Prasad, Avadhnarayan and Harishankar have passed away. As per plaint, Jagannath Prasad during his life time had parted with the land situated in village Bajariya, district Vidisha admeasuring 2.361 hectare falling in survey No. 62 and 1.392 hectare in survey No. 73 and bequeathed in favour of late Avadhnarayan. Likewise, land admeasuring 2.049 hectare falling in survey No. 92/1 was also bequeathed in favour of Harishankar (hereinafter referred to as ''the suit land''). Remaining land was recorded in the name of Jagannath and after his death, the same was succeeded by plaintiffs and accordingly, mutated in the revenue recorded in the names of plaintiffs'' and defendants'' both. On entire land of the ownership of late Jagannath, each of the brothers have equal shares. No partition had taken place amongst them. As defendants names are mutated in the revenue record alongwith plaintiffs, they denied title of the plaintiffs over the aforesaid suit land though on account of oral (VAHIM) settlement, suit land had fallen to the share of plaintiffs''. Since defendants have started interfering with the possession of plaintiffs, instant suit for permanent injunction was filed.

Defendants No. 1 to 7 have filed written statement and denied plaint allegations. It is submitted that land falling in survey Nos. 62 and 73 are of the exclusive possession of Avadhnarayan by virtue of patta having granted by State in his favour and the same is not part of ancestral property, which has not been partitioned. On the aforesaid pleadings, it was prayed that the suit be dismissed.

Defendants No. 8 to 11 have also filed written statement and submitted that the land falling in survey No. 92/1 was purchased by their father, Harishankar on his own and, therefore, after his death, aforesaid defendants have succeeded the same with exclusive right and title thereon. Further, they submitted that the suit land is an ancestral property of late Jagannath, therefore, all the members of the family have been in possession. On the aforesaid pleadings, it was prayed that the suit be dismissed.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court dismissed the suit. On appeal, the first appellate court has again thread-bear discussed the oral and documentary evidence on record. It has addressed on the issue as to whether the land falling in survey Nos. 62 and 73 admeasuring 2.361 hectare & 1.392 hectare respectively, Avadhnarayan had exclusive right by virtue of patta granted in his favour by State and land in survey No. 92/1 admeasuring 2.049 was purchased by Harishankar. As such, defendants No. 8 to 11 have exclusive right, title and possession over the suit land being heirs of Harishankar. It has been found that plaint averments that the land as mentioned above in the name of Jagannath, Avadhnarayan and Harishankar were of co-parcenary property owned by Jagannath though purchased by the aforesaid two sons gets falsified by plaintiffs'' own witness Ramswaroop (P.W.4) who admits in paragraph 11 of his cross-examination that Harishankar has purchased the aforesaid land from Nathuram Ghatera and since then, he is in exclusive possession thereon doing cultivation and after his death, his sons continued to be in possession over it. He further admits that plaintiffs have never been in possession over the said suit land. As regards source of income of Harishankar, the first appellate Court has discussed the evidence on record in paragraph 13. No evidence has been lead by the plaintiffs to establish the claim that the land held by Avadhnarayan and Harishankar are part of co-parcenary property. Likewise there is no evidence that amongst the members of the family oral (VAHIM) settlement or oral partition had taken place as there is inherent contradiction in the averments made in the plaint and the evidence lead by the plaintiffs as discussed in paragraph 15 of the impugned judgment by the first appellate Court. With the aforesaid findings, the first appellate Court has concurred with the findings of the trial Court and dismissed the appeal.

Having perused the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that the Courts below have recorded concurrent findings of fact based upon critical evaluation of the evidence on record and, therefore not committed any error of law or fact while dismissing the suit of plaintiffs. The entire matter at issue is in realm of facts. The findings are fully justified and impregnable in nature. No question of law much less substantial question of law arises warranting interference u/s 100 of the Code.

The appeal sans merit and is dismissed.

Certified copy as per rules.