Piara Singh vs Khazan Singh

Vinod K. Sharma, J.

C.M. No. 7189-C of 2009

For the reasons stated in the application, CM. is allowed and the delay of 5 days in filing the appeal is condoned.

CM No. 7190-Cof2009

For the reasons stated in the application, order dated 30.5.2009 is recalled and the appeal is restored to its original number. R.S.A. No. 4376 of 2008

This regular second appeal is directed against the judgment and decree dated 24.7.2008, passed by the learned Courts below, dismissing the suit filed by the plaintiff/appellant for possession and recovery of mesne profit.

The suit was filed by the plaintiff/appellant on the plea, that the suit land was under the possession of Gulaba Singh son of Wadhawa Singh as panahi quadeem (occupancy tenant) The pleaded case of the plaintiff was that Gulaba Singh had four brothers i.e. Piara Singh, Shingara Singh, Tara Singh and Hazara Singh. Shingara Singh and Hazara Singh were said to have died issueless, and Gulaba Singh expired on 8.2.1997. Tara Singh also expired, therefore, it was claimed that the plaintiff/appellant was the only legal heir to inherit the occupancy right. It was pleaded, that the defendant had occupied the suit land forcibly and illegally in the year 1991. In spite of requests, he neither delivered the possession of the suit land nor paid any mesne profit from rabi 1991 till date @ Rs. 5,000/- per acre per year.

The suit was contested by the defendant/respondent by raising preliminary objection, that suit was liable to be stayed, u/s 10 of the Code of Civil Procedure. It was also pleaded that plaintiff had no locus standi or cause of action to file the suit. The suit was also said to be bad for non-joining of Central Government, under whom the defendant/respondent was in possession as tenant for more than 30 years. The suit was also said to be time barred. The plea was also taken that the plaintiff/appellant had concealed the material facts from the Court and that the suit was not properly valued for the purpose of court fee. On merit, the interest of Gulaba Singh in the suit property was denied. It was also denied, that the plaintiff/appellant was related to Gulaba Singh and, therefore, was not entitled to possession of the property. The defendant also denied the pedigree table set up by the plaintiff/appellant in the suit.

In the replication, averments made in the plaint were reasserted and those of written statement were denied.

On the pleading of the parties, the learned trial Court framed the following is-sues:

Whether Gulaba son of Wadhawa Singh was in possession of the land as Panahi Qadeem? OPP.

Whether the plaintiff is entitled for mesne profits as prayed?

Whether the plaintiff has got no locus-standi to file the present suit? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff has got no cause of action? OPD

Whether the suit is bad for mis-joinder of Central Government as a party? OPD.

Whether the suit is time barred? OPD.

Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD

8A. Whether the plaintiff is legal heir and successor-in-interest of said Gulaba and entitled for possession of suit land? OPD

Relief.

One of the important facts noted by the learned trial court was, that though the plaintiff had claimed that Gulaba Singh died on 8.2.1997, but in cross-examination the appellant admitted that he had got mutation of inheritance of Gulaba Singh sanctioned in the year 1981. The learned Court further noticed that the documentary evidence i.e. DW5/A and the entry in the register of deaths i.e. DW5/B showed that Gulaba Singh was a married person.

The learned trial Court also did not accept the revenue record produced by the plaintiff/appellant, as it was contrary to the pleadings in the plaint. The learned trial Court found, that no evidence was led by the plaintiff/appellant about the possession of Gulaba Singh, and as to when he was dispossessed by the defendant. A finding of fact was recorded that Gulaba Singh was never in possession of the suit property. The learned trial Court further held, that the plea of the plaintiff/appellant that Gulaba Singh died on 8.2.1997, also stood belied, as in the mutation sanctioned in the year 1989, name of Gulaba Singh was not mentioned. The learned trial Court held, that the plaintiff/appellant was not brother of Gulaba Singh, therefore, not legal heir or successor-in-interest of Gulaba Singh.

The findings recorded by the learned trial Court had been affirmed by the learned lower appellate Court.

The learned Counsel appearing on behalf of the appellant contends, that the appeal raises the following substantial questions of law:

Whether in the facts and circumstances of the case, the relationship of appellant with Gulaba Singh (deceased) was duly proved as per requirement of Section 50 of the Indian Evidence Act?

Whether the mutation confers any right, title or interest in the property?

Whether the learned Courts below failed to notice that it was for the respondent to prove his title over the suit property, and show how he entered in the possession of the property?

In support of the substantial questions of law, the learned Counsel for the appellant contends that the appellant examined Lambardar of the village to prove the relationship of plaintiff/appellant with Gulaba Singh, which satisfied the requirement of Section 50 of the Indian Evidence Act, therefore, the learned Courts below committed an error in holding, that the plaintiff/appellant had failed to prove his relationship with Gulaba Singh in non-suiting him.

The contention raised by the learned Counsel for the appellant cannot be accepted. u/s 50 of the Indian Evidence Act, the evidence of relation or person connected with is required to be led, to prove the relationship by conduct. But no such evidence was led. Furthermore, there is a positive finding, that even possession of Gulaba Singh was not proved, thereafter merely by proving relationship, the plaintiff/appellant could have not succeeded in the suit.

Learned Counsel for the appellant further contends, that the learned Courts below wrongly placed reliance on the mutation to deny the relief claimed on the contention that the mutation confers no title, therefore, was of no evidentiary value to determine the claim of the party.

This contention is also mis-conceived. The learned Courts below have not taken mutation to be basis but have only rejected the evidence of the plaintiff, which was merely oral.

In support of third substantial question of law, the learned Counsel for the appellant contends, that once it was found that the defendant/respondent was in possession of the property, it was for him to show in what capacity he was there and how he came into possession.

This plea again is totally mis-conceived. The onus could not be put on defendant to prove his defence on the failure of the plaintiff to prove the case set up in the plaint. Furthermore, the respondent/defendant had pleaded and proved that the land was under the ownership of Central Government and he was tenant under the Central Government.

The substantial questions of law raised, therefore, do not arise for consideration in this appeal, or in any case deserve to be answered against the appellant.

No merit.

Dismissed.