Pawan Toor vs Ranbir Kaushal

Arun Palli, J.—Suit filed by plaintiff was decreed by trial Court vide judgment and decree dated 14.02.2007. Appeal preferred against the said decree failed and was, accordingly, dismissed by learned first Appellate Court vide judgment and decree dated 03.09.2010. That is how, defendant No. 1 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 plaintiff was that the suit property as detailed in the plaint belonged to Vandana Kohli wife of Rajnish Kohli, who purchased this plot vide registered sale deed dated 22.09.1989. Vandana Kohli through her attorney sold the said plot to plaintiff vide registered sale deed dated 10.10.1997 and he was put in vacant physical possession thereof. Mutation No. 7829 was, accordingly, sanctioned in favour of plaintiff. Pursuant to having purchased the said plot, plaintiff raised a boundary wall around the said plot upto 5 feet and fixed a gate. It was stated that defendant No. 1, claimed herself to be the owner of the suit property and threatened to take forcible possession thereof. On inquiries made from the revenue officials, it transpired that the plot purchased by plaintiff formed part of khasra No. 122/32/1. On the contrary, defendant owned a plot, which formed part of khasra No. 122/22/2/2, at a distance of few plots from the disputed plot. Since there was a threat of dispossession, thus, the suit.

Defendant No. 1, pleaded, inter alia, that suit property did not belong to Vandana Kohli. Dimensions of the property in dispute were not given correctly. Further, the sale deed which was purportedly executed in favour of Vandana Kohli by Surinder Singh did not relate to the plot in dispute. It was maintained that defendant No. 1 purchased the plot in dispute from Davinder Singh son of Hari Singh vide registered sale deed dated 09.10.1989 and accordingly, she was put in possession. It was asserted that plot in question was comprised in khasra No. 122/22/2/2 and not in khasra No. 122/32/1.

On an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that plaintiff proved a sale deed (Ex. P5), executed by one Surinder Singh in favour of Vandana Kohli. And also sale deed (Ex. P1) whereby plaintiff had purchased the suit property from Vandana Kohli. To substantiate his possession, plaintiff had examined PW 3 Swaraj Singh, Photographer, who proved the photographs from PW 3/1 to Ex. PW 3/9. Still further, plaintiff also examined Ramesh Choudhary, Advocate (PW 6) and B.S. Rampal (PW 10). The said two witnesses happened to be the residents of the same locality where the site in dispute is situated. Even in the sale deed (Ex. P1), it was duly recited that the possession of the suit property was delivered to plaintiff. Not just that, defendant No. 1 herself never chose to appear in the witness box. Principal issue, as to whether the suit property formed part of khasra No. 122/32/1 min or 122/22/2 min, pursuant to the orders passed by the Court, Local Commissioner Kewal Krishan, Kanungo was appointed to ascertain this fact. Demarcation report (Ex. P12/6) revealed that the suit property indeed formed part of khasra No. 122/32/1 min. Objections preferred by defendant against the said report were disallowed by the trial Court by a separate order. Revision preferred against the said order to this Court was dismissed. Local Commissioner was subjected to cross-examination and he proved that demarcation was made from Sehada of the village which was a fixed point. Consequently, contention of the counsel for the defendant that, no such point was marked by Local Commissioner was found to be untenable. Further, no notice was afforded by Local Commissioner to the defendant before carrying out demarcation, was also repelled by the Court as the records revealed that notice (Ex. PW 12/3) was issued to the counsel for defendant. However, he made an endorsement thereon that the same be sent to the party itself. Argument advanced on behalf of defendant that, boundaries mentioned by the plaintiff in the pleadings did not tally with the sale deed of Vandana Kohli and the boundaries mentioned by plaintiff in the site plan (Ex. P7) were different from the one mentioned in the plaint, was also rejected. As the boundaries of the property in dispute were not the principal issue involved for determination. The short issue to be determined was as to which khasra number the plot in dispute formed part of i.e. khasra No. 122/32/1 or khasra No. 122/22/2/2. That being so, learned trial Court was of the view that the report of Local Commissioner conclusively proved that the property in dispute formed part of khasra No. 122/32/1 min. as pleaded by plaintiff. Accordingly, suit was decreed.

Being dissatisfied with the said decree, defendant No. 1 preferred an appeal. Learned first Appellate Court reviewed the matter in issue, evidence on record in its entirety and on an analysis thereof found itself in concurrence with the view drawn by learned trial Court and the findings recorded in support thereof. It was reiterated that the Local Commissioner had clearly stated in his report that the suit property formed part of khasra No. 122/32/1 and khasra No. 122/32/2. And what the defendant had concededly purchased from Devinder Singh was comprised in khasra No. 122/22/2. Further, objections raised to the report of the Local Commissioner were dismissed by a formal order passed by learned trial Court and the revision preferred against the said report was also dismissed by this Court. Argument of the counsel for defendant that the identity of the property could be established from the boundaries, was also repelled as the learned first Appellate Court was of the view that the property in question was identifiable by khasra numbers, and it could be easily determined as to which khasra number the plot in dispute formed part of.

Resultantly, appeal was dismissed.

I have heard learned counsel for the appellant at length and examined the judgments rendered by the Courts below.

Learned counsel for the appellant could not show or point out as to how the findings recorded by both the Courts were perverse or contrary to the position on record. All what he has urged is that there is a discrepancy in the boundaries, depicted in the sale deed (Ex. P1) and the sale deed (Ex. P5), and those do not tally. To my mind, even if it is assumed to be so, it still does not enhance the case of defendant a bit. Short question, involved for determination before the Courts below and even before this Court was/is as to which khasra number, the suit property formed part of. Case set out by the plaintiff was that the suit property formed part of khasra No. 122/32/1. Defendant claimed it to be a part of khasra No. 122/22/2/2. Report of the Local Commissioner clinched the issue as it had been recorded that the plot in dispute formed part of khasra Nos. 122/32/1 and 122/32/2. The site, which was concededly purchased by plaintiff. Indisputably, defendant No. 1 had no right, title or interest in khasra No. 122/32/1 or 122/32/2. On the contrary, defendant No. 1 had failed to lead any evidence that the plot in dispute formed part of khasra No. 122/22/2/2. Even if, it is assumed for a moment that there could be some discrepancy in the boundaries, still that would not mean that the suit property would become part of khasra No. 122/22/2/2, purported to be purchased by the defendant.

Learned counsel for the appellant, also urged that the report of the Local Commissioner could not be relied upon, as it was not a report in the eyes of law. To my mind, the argument is completely untenable. Firstly, the objections preferred by defendant No. 1 against the said report were dismissed by the trial Court vide a separate order and even the revision preferred against the said order was dismissed by this Court. Secondly, the Local Commissioner before carrying out the demarcation issued notice to the counsel for defendant, who chose not to be present at the spot. Still further, Local Commissioner was cross-examined by the defendant and he duly proved his report, and clarified that demarcation was carried out from the Sehada of the village, which was a fixed point. That being so, defendant cannot question the veracity and validity of the report. Further, defendant No. 1 never chose to appear in the witness box to support her case. Attorney of defendant No. 1 i.e. Jagjeet Singh, appeared in the witness box and admitted that possession of the suit property was not taken by defendant No. 1 in his presence. And in fact, the same was obtained by Surinder Kumar Sharma on her behalf. Said Surinder Kumar Sharma, who could have been a crucial witness, was never examined by the defendant.

In the wake of the position as set out above and the conclusions that have concurrently been recorded by both the Courts below, no ground, least plausible in law, exists to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration. Appeal being devoid of merit is, accordingly, dismissed.