Mubin and Another vs Mohd. Ibrahim

L.N. Mittal, J.—This is second appeal by defendants, who have been unsuccessful in both the courts below.

Respondent - Mohd. Ibrahim filed suit for mandatory injunction and permanent injunction alleging that he along with his brothers purchased 2/3rd share in land measuring 01 kanal 16 marlas comprised of Killa No. 30 from Rafiq and Subrati, vide registered sale deed dated 18.10.1999 along with other land and since then, plaintiff is co-sharer in joint possession of the said land. Defendants have no right, title or interest therein, but in the absence of the plaintiff and his brothers, who mostly remained away from the village for their business, the defendants have constructed three rooms in the suit land along with some other construction about three months before the filing of the suit. The defendants also wanted to raise further construction in the suit land, for which they started digging foundation. The plaintiff accordingly sought mandatory injunction directing the defendants to demolish the construction raised by them in the suit land. The plaintiff also claimed permanent injunction restraining the defendants from raising any further construction in the suit land.

The defendants denied the averments of the plaintiff and inter alia pleaded that defendants are exclusive owners in possession of the suit land. Their grandfather Sikander was previously owner in possession thereof. The defendants are residing in the suit property since the time of their forefathers. The suit property now falls in abadi deh and therefore, it has been omitted from the revenue record. Rafiq and Subrati were not owners of the suit land and had no right to sell the same to the plaintiff and his brothers. Plaintiff is not co-sharer in joint possession of the suit land.

Learned Additional Civil Judge (Senior Division), Ferozepur Jhirka, vide judgment and decree dated 18.10.2005, decreed the plaintiff''s suit. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Gurgaon, vide judgment and decree dated 31.01.2006. Feeling aggrieved, the defendants have preferred the instant second appeal.

The appellants have also moved C. M. No. 8563-C of 2009 for additional evidence to place on record documents Annexures A-1 to A-3.

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

C.M. No. 8563-C of 2009 is not opposed. The documents sought to be produced are relevant to effectively determine the controversy. Accordingly, this application is allowed and documents Annexures A-1 to A-3 are admitted in evidence by way of additional evidence. Learned Counsel for the appellants vehemently contended that before consolidation of holdings, Khasra Nos. 318 and 319 were owned by defendants'' grandfather Sikander, as revealed by jamabandi Annexure A-1 for 1954-55. It was also contended that vide Khatoni Pamaish (Annexure A-2), Killa No. 30 was formed during consolidation of holdings out of Khasra Nos. 318 and 319 (previously owned by defendants'' grandfather) and Khasra No. 444 (previously owned by Darab Khan). It is undisputed that Darab Khan''s daughter Allavi, who inherited the suit land from Darab Khan, sold the same to Dilawar, Rafiq and Subrati in equal shares and Rafiq and Subrati sold their 2/3rd share to the plaintiff and his brothers. Learned Counsel for the appellants accordingly contended that Killa No. 30 of the suit land having been formed out of Khasra Nos. 318 and 319 (previously owned by defendants'' grandfather) and Khasra No. 444 (previously owned by predecessor-in-interest of the plaintiff), the defendants also became cosharers in Killa No. 30 and the defendants are in exclusive possession thereof because the suit land came in abadi.

I have carefully considered the aforesaid contention, but find no merit therein, although apparently the contention appears to be attractive. In fact, documents Annexures A-1 to A-3 demolish the whole case of the defendants. It is correct that according to jamabandi (Annexure A-1), Khasra Nos. 318 and 319 were owned by Sikander. It is also correct that Killa No. 30 comprising suit land was formed out of Khasra Nos. 318, 319 and 444 during consolidation of holdings. However, in consolidation of holdings, after Killa No. 30 was formed out of Khasra Nos. 318, 319 and 444, said Killa No. 30 was allotted to Darab Khan alone, whereas some other land might have been allotted to defendants'' predecessor Sikander. Khatoni Pamaish (Annexure A-2) clearly specifies that the land mentioned therein including land of Killa No. 30 comprising the suit land was allotted to Darab and Darab only, who was owner in self cultivating possession thereof. Similarly, Consolidation Proceedings (Annexure A-3) reveal that Darab alone was owner of the suit land comprising Killa No. 30 along with some other land as the same was allotted to him in lieu of his land held before consolidation of holdings. It thus becomes apparent and manifest from the documents produced by the appellants themselves in additional evidence that the suit land was allotted to and owned by Darab Khan alone since consolidation of holdings took place and defendants'' predecessor Sikander had no right, title or interest in the suit land comprising Killa No. 30. In subsequent jamabandis also, defendants or their predecessors were never recorded to be either owners or in possession of the suit land. On the other hand, in jamabandis Ex.P-10 for the year 1978-79, Ex.P-9 for the year 1983-84 and Ex.P-11 for the year 1993-94, Rafiq and Subrati (predecessors-in-interest of the plaintiff) and Dilawar were recorded to be owners in possession of the suit land.

From the entire revenue record including the additional evidence admitted in this second appeal, at the instance of the appellants, it emergres that defendants have no right, title or interest in the suit land. On the other hand, plaintiff and his brothers are owners in possession of the suit land to the extent of 2/3rd share therein. The suit has been rightly decreed by both the courts below. There is no infirmity in the concurrent finding recorded by the courts below on appreciation of evidence. The said finding is not perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed.