Pir Bakhsh vs Akbar Deen and Another

Deepak Gupta, J.—This regular second appeal by the Defendant is directed against the order of the learned Additional District Judge-II, Kangra at Dharamshala, dated 30.3.2000 whereby he dismissed the appeal filed by the Appellant and upheld the judgment and decree of the learned Sub Judge Ist Class, (Court No. 1), Nurpur, dated 2.11.1998 decreeing the suit of Plaintiff Nikka.

Briefly stated, the facts of the case are that Nikka predecessor-in-interest of Respondents (1a) & (1b) filed a suit wherein he claimed that the suit land was in his ownership and possession prior to settlement proceedings which took place in the year 1982-83. According to him, the suit land had fallen to his share and the Defendants were strangers and had no right in the suit land. He claimed that the Defendants had forcibly taken possession of suit land and brought it under cultivation in ''Kharif'' 1981. Despite request of the Plaintiff, the Defendants had refused to vacate the same. It was further alleged that about 4 months prior to filing of the suit, the Defendants cut and removed about 2 trolleys of fire wood of the trees situated in the suit land. Therefore, the suit for possession and damages to the extent of Rs. 1000/-.

The Defendants contested the suit. According to the Defendants, this land was allotted to Defendant No. 1 in partition and he is in possession of the same since the year 1981. The ownership of the Plaintiff was denied. The Defendants also prayed that they were in open and hostile possession of the suit land for more than 12 years and therefore, the Plaintiff had lost his right in the suit land. On the pleadings of the parties, the following issues were framed:

Whether the Plaintiff is owner with other co-sharers of the suit land and was in possession thereof, as alleged? OPP.

If issue No. 1 is proved in affirmative, whether the Plaintiff is entitled for the relief of possession and damages as claimed? OPP.

Whether the Plaintiff has no locus-standi to file the suit, as alleged ? OPD.

Whether the suit is not maintainable, as alleged ? OPD.

Whether the Plaintiff has no cause of action, as alleged ? OPD.

Whether the Plaintiff is stopped to file the suites alleged ? OPD.

Whether the suit is barred by limitation, as alleged ? OPD.

Whether the Defendant No. 1 has become owner of the suit land by adverse possession, as alleged? OPD.

Relief.

The learned Trial Court decided issue No. 1 in favour of the Plaintiff. As far as issue No. 2 is concerned, though the Plaintiff was held entitled to possession of the suit land, he was not held entitled to damages for the wood removed. All the other issues were decided against the Defendants. The suit was decreed and the Plaintiff was held entitled to possession of the suit land. The Defendants filed an appeal which was dismissed by the learned Lower Appellate Court and hence this appeal.

The main contention raised by the Appellant in this appeal is that the Plaintiff has failed to prove the instrument of partition and has failed to bring on record the warrant whereby he was delivered possession in accordance with such partition. The appeal was admitted on the following substantial questions of law on 1.3.2001:

Whether in the facts and circumstances of this case the partition proceedings and possession of the Plaintiff over the suit land pursuant to mutation of partition is bad in law in the absence of the instrument of partition?

Ext. P-1 is a copy of the jamabandi for the year 1982-83 in which Nikka Plaintiff is recorded as owner, though Defendant has been recorded in possession. Ext. P-2 is the jamabandi for the year 1972-73 and Ext. P-3 is the jamabandi for the year 1978-79. The entries in the jamabandi show that the suit land along with other land was jointly owned and possessed by the co-sharers. Entries in the red ink in the remarks column clearly show that the suit land had fallen to the share of the Plaintiff. For the first time the Defendant was shown to be in possession in the jamabandi for the year 1982-83. Ext. D-1 is the copy of the order of Assistant Collector Ist Grade which shows that the partition was effected and agreed by the co-sharers as correct and vide Ext. D-12 mutation was effected in respect of the partition.

Both the Courts below have come to the finding of fact that these documents show that the suit land had fallen to the share of the Plaintiff. Nothing has been brought to my notice that the suit land falls to the share of the Defendant. In fact, what has been argued before me is that without the instrument of partition being placed on record, it cannot be said that possession was ever delivered to the Plaintiff. The order Ext. D-1 which was placed on record by the Plaintiff clearly indicates all the parties had accepted the instrument of partition and had also agreed that possession would be delivered after the "Rabi" crop in the year 1978 was harvested.

I am of the clear view that the findings of the learned Courts below are only pure findings of fact and no question of law much less substantial question of law is involved in the appeal. The judgments cited by the Appellant i.e. Khem Dutt and Ors. v. Palkia and Anr. 1983 Sim.L.C. 77 and Gopi Chand and Anr. v. Sonam Dass and others 1998(1) Shim.L.C. 488 have no applicability to the facts of the present case. These cases are totally distinguishable. In the present case the Defendants in fact did not deny the factum of partition and took up the plea that the suit land was allotted to Defendant No. 1 in partition and he took possession of the same after partition. Once the Defendants did not deny the partition they cannot now be heard to be argue that no partition took place. The documents clearly indicate that in these partition proceedings, the land was allotted to the Plaintiff and not to the Defendant. Hence, I find no merit in the appeal which is accordingly dismissed. No costs.