Mangal Singh vs Govind Ram Kandwal

Umesh Chandra Dhyani, J.—Present second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 3.12.2010 passed by learned Civil Judge, (SD) Rishikesh District Dehradun in Civil Suit No. 255 of 2009 by which learned Trial Court dismissed the suit filed by the plaintiff and also against he judgment and decree dated 17.10.2011 passed by learned Addl District Judge Rishikesh District Dehradun, whereby the first appellate court dismissed the appeal.

Plaintiff-appellant instituted a suit for permanent prohibitory against the defendant-respondent for directing the defendant-respondent not to interfere in the suit property which was detailed and specified in the plaint. The defendant contested the suit and filed written statement. He also filed additional written statement. On the basis of rival pleadings, the following issues were framed.

"(i) Whether the plaintiff is owner in possession of the suit property and the defendants are trying to interfere in the same?

(ii) Whether the defendant has already encroached upon the suit property between 08.04.2009 to 10.04.2009 by raising a wall and the plaintiff is entitled to demolish the same?

(iii) Whether the suit is under valued?

(iv) Whether the plaintiff has not correctly demarcated the suit property?

(v) Whether the suit is barred by Order 7 Rule 11 CPC.

(vi) To what relief is the plaintiff entitled?"

Both the parties filed documents in support of their cases PW 1 Mangal Singh, PW 2 Kumar, PW 3 Jyoti Ramand CW 1 Anil Seth Civil Court Amin were examined on behalf of the plaintiff. DW 1 Govind Ram, DW 2 Sampoornanand, DW 3 Narendra Singh were examined on behalf of the defendant.

The trial court after considering the evidence on record decided issue Nos. 1 & 2 against the plaintiff and in favour of the defendant. As regards issue No. 3, which was decided that the suit was property valued and court fee paid was sufficient. Issue No. 4 was decided against plaintiff and in favour of the defendant. Issue No. 5 was decided that the plaintiff had no cause of action to institute the said suit, and accordingly, according to issue No. 6, the plaintiff was not entitled to any relief and his suit was dismissed vide judgment and order dated 03.12.2010 passed by learned Civil Judge (SD), Rishikesh.

Aggrieved against the same first appeal was instituted before the District Judge, Dehradun which was transferred to Addl District Judge, Dehradun for disposal according to law. Learned Lower Court, after considering the rival contentions, dismissed the appeal vide judgment and decree dated 17.10.2011.

Still aggrieved against the same present second appeal has been preferred. Learned counsel for the appellant proposed following substantial questions of law:

"(i) Whether the plaintiff-appellant had clearly delineated the property in dispute by reference Nos. , are and plaint map?

(ii) Whether the courts below erred at law by misconstruing the provisions of Order 7 Rule 3 of CPC?

(iii) Whether a party to a lis can have a better title than was conveyed by virtue of sale deed and claim more area by making entry of larger area in revenue records?

(iv) Whether the judgment of the first appellate court having failed to frame points for determination and not giving findings on the same is in contravention of provisions of Order 41 Rule 31 of CPC?

(v) Whether the findings of courts below on the encroachment and forcible construction of wall by defendant-respondent are perverse once having recorded the categorical findings of construction of wall?

(vi) Whether area in revenue records can be enhanced in mere entry in revenue records rendering Section 229B of U.P.Z.A. & L.R. Act otiose?

(vii) Whether without affidavit written statement can be read against the plaintiff or is in contravention of provisions of Order 6 Rule 15 of CPC?"

The case of the plaintiff-appellant is that defendant''s name was wrongly recorded in revenue records. It is also his case that the defendant got his name manipulated and wrongly recorded in his name and as such he was trying to encroach upon the suit property.

Defendant''s case on the other hand is that he purchased the suit property from one Sardar Surjeet Singh by a registered sale deed dated 9.12.1988 and is the owner in possession of the suit property since then. It is his definite case that his name is recorded in revenue records and the plaintiff has no concern with the land in question. The defendant has alleged that it is the plaintiff who wants to encroach upon a part of the property of the defendant, to which he has no concern and therefore the suit was barred by Order 7 Rule 11 CPC.

Document has been filed on record to show that the defendant purchased the disputed land from one Sardar Surjeet Singh and thereafter his name has been recorded as such in the disputed property. When any fact can asserted and established on the basis of documentary evidenced. It is the settled law that the oral evidence fades into oblivions. In the instant case although it is not necessary to discuss the oral evidence but even then the witnesses brought by the defendant have stated, in unequivocal terms that the defendant is owner in possession of the suit property. Plaintiff witnesses on the other hand could not show the exact measurement of the disputed property. A panchayat was convened to resolve the dispute between the parties but to no avail.

In order to elucidate the controversy in hand, the trial court sent Civil Court Amin on the spot. CW 1 Anil Seth gave his report. He measured the said land in presence of the parties, the trial court was of the view that there was material difference between the site plan prepared by the court Amin and plaint map. The suit property, as per plaint averments were therefore not identifiable. The suit property was therefore not delineated by the plaintiff in his plaint.

The trial court therefore rightly found that the plaintiff was not entitled to any relief.

The Lower Appellate Court has also dealt with those issues which were framed by the trial court, gave its own findings and came to the conclusion that there was no reason to interfere in the judgment of the trial court. The appeal was accordingly dismissed.

The point for determination before this court is whether the plaintiff is owner in possession of the suit property?

This court need not frame any other point of determination inasmuch as the other points are supplemental to this main point of determination. If the plaintiff-appellant is unable to show that he is the owner in possession of the suit property, the other points of the fade into oblivion. In order to establish his case, in a suit for permanent prohibitory injunction, the plaintiff has essentially to establish that he is the owner in possession of the suit property, no matter what is the finding on other issues. In the instant case, it is established fact that the name of the defendant is recorded in ownership and possession of the suit property. Plaintiff has himself admitted that the defendant has got the things manipulated and got his name recorded in the revenue records. The Civil Court will come into picture only when the plaintiff is a recorded tenure holder for otherwise the jurisdiction will vest in the Revenue Court.

The aforesaid point of determination is therefore answered against the plaintiff-appellant and as such this court does not find that the second appeal involves any substantial question of law. In view of the above discussion, having found that no substantial question needs to be formulated, second appeal is dismissed at the admission stage itself.

This court does not find it proper to disturb concurrent findings of fact given by two courts below.