Pyara Singh through LRs and Others vs Tara Singh and Others

M.M. Kumar, J.—This is plaintiffs'' appeal filed u/s 100 of the Code of Civil Procedure, 1908 (for brevity "the Code") against the concurrent findings of fact recorded by both the Courts below dismissing their suit. The plaintiff-appellants have filed Civil Suit No. 97 dated 23.2.1976/94 dated 23.11.1979 claiming possession of the suit land from the defendants on the ground that they were owners of the suit land as the same had been purchased by them from the Rehabilitation Department for a sum of Rs. 5,425/-. In that regard primary reliance was placed on the sale certificate dated 31.3.1967. The plaintiff-appellants have further claimed that they were staying away from the property in their village and the defendants-respondents forcibly trespassed over the suit land and made illegal constructions. The trial Court after examining the documentary as well as oral evidence came to the conclusion that the plaintiff-appellants were not able to prove the area of the plot No. 48 which was in dispute nor they could prove that the area is 1337 sq. yards as was claimed by them from the defendant-respondents. Even the boundaries as depicted in the site plan were not found to match with the sale certificate (Ex. P3).

On the issue as to whether the defendant-respondents were the lessees of the Municipal Committee, Sangrur, it was categorically found by the learned trial Court as under:

The defendant to prove issue No. 2 relied upon receipt Exs. D1 to D47 to show that they were the lessees of the Municipal Committee, Sangrur on the site in dispute. These receipts were proved by D.W. 10 Madan Lal, Rent Collector, Municipal Committee, Sangrur. A scrutiny of these receipts does not at all show that they pertain to the site in dispute. No area or the boundaries of the place to which Exs. D1 to D45 relate, is mentioned in these receipts. D.W.10 categorically admitted in his cross-examination that the area for which the rent was realized from the defendants through Exs. D1 to D45 was 30'' x 18'' in possession Tara Singh defendant and 70'' x 18'' in possession of Tara Singh defendant. This area on calculation comes to 3600 sq.feet which means 400 sq.yards. The site in dispute is claimed to be 1337 sq. yards. This automatically shows that the site in dispute which related to Exs. D1 to D45 is a different one than the site in dispute bearing plot No. 48 D.W. 1 in the fag end of his cross-examination admitted that the area of the site with the defendants was not shown in the Municipal Register in the years 1966-67. This itself clarifies that the defendants speak of a different place under their lease-hold than the site in dispute, to be the same place for which Exs. D1 to D45 have been got proved on the file. On going through the entire evidence, I do not feel inclined to hold that the plaintiffs have been able to prove that the area of plot No. 48 is the same, which is mentioned in the plaint and for which possession is claimed from the defendants. At the same time, the defendants have also failed to prove that the site in dispute belongs to the ownership of Municipal Committee, Sangrur. In the circumstances, issue No. 1 is decided against the plaintiffs and issue No. 2 is decided against the defendants.

On the question of limitation of filing the suit, the learned trial Court held that the suit was filed within the period prescribed and it was not barred by limitation.

On appeal filed u/s 96 of the Code, the learned Additional District Judge in para 8 of his judgment confirmed the findings recorded by the learned trial Court, which read as under:

The plaintiffs proved upon the file sale certificate Ex. P3 and also produced site plan Ex. P4 and copy of the register of acquired Urban Immovable Property Ex. Pl. On the basis of these documents the plaintiffs claimed to be the owners of the property in dispute. However, as rightly observed by the learned trial Court these documents do not sufficiently fix the identity of the property purchased by the plaintiffs and are, therefore, insufficient to prove that it was the property in dispute that was purchased by the plaintiffs. In sale certificate Ex. P3 only boundaries of the property sold are given and not its area. The boundaries as given in Ex. P3 do not tally with the boundaries of the property as given in the site plan Ex. P4 and there is nothing to suggest that Ex. P4 was part of the sale certificate Ex. P3. It, therefore, obviously mean that Ex. P4 was prepared sometime after sale certificate Ex. P3 was issued. That being so site plan Ex. P4. I think cannot be of much avail to the plaintiffs to fix the identity of the property. If this is ignored sale certificate Ex. P3 and copy Ex. P1 also cannot be of any avail to the plaintiffs because from these documents the identity of the property sold cannot be spelt out positively. It has come in evidence that in pursuance of the sale certificate possession of the property sold was given to the plaintiffs by the Rehabilitation Department and at that time a writing was prepared. That writing must have contained the exact area and the boundaries of the property of which possession was delivered to the plaintiffs. That writing could be the best evidence to fix the identity of the property purchased by the plaintiffs. But for the reasons best known to the plaintiffs that writing has not been produced. This raises a presumption that had the said writing been produced it would not have supported the plaintiffs. Anyhow in the absence of that writing the sale certificate Ex. P3 or copy Ex. P1 which do not contain full description of the property sold cannot be of any help to the plaintiffs and as such are insufficient to prove that it was the property in dispute that was sold to the plaintiffs. Consequently, the plaintiffs cannot be held to have been proved to be the owners of the property in dispute. The learned Counsel for the appellants could not argue much against it. Therefore, I must hold that the decision given by the learned trial Court on issue No. 1 is not in any way incorrect or erroneous. Therefore, the same is hereby upheld.

During the pendency of the appeal, the plaintiff-appellants have filed an application under Order 41 Rule 27 of the Code to adduce additional evidence to which detailed reference was made during the course of arguments. It was urged that Valuation Form ''C'' clearly gives the total area of the plot which is 1337 sq. yards along with other details.

After hearing learned Counsel for the parties and perusing the record with their able assistance I am of the considered view that no question of law much less a substantive question of law would arise for determination of this Court. The question of identification of the land by matching boundaries is necessarily a question of fact. This Court cannot appreciate the evidence and record a finding contrary to the one recorded by both the Courts below. In that regard, reliance may be placed on a judgment of Hon''ble the Supreme Court in the case of P. Udayani Devi Vs. V.V. Rajeshwara Prasad Rao and Another, . In the penultimate para, it has been categorically held that the question as to what was sold is a question of fact and it would not give rise to any question of law. Therefore, no interference of this Court would be warranted.

The other question as to whether this Court would grant permission to adduce additional evidence under Order 41 Rule 27 of the Code, would not require any detailed consideration because even if the area mentioned in the Valuation Form ''C'' sought to be produced is taken into consideration, even then identity of the property would still be extremely doubtful. It is well settled that application for adducing additional evidence should be entertained when it becomes necessary to pronounce the judgment or in cases where the findings are likely to be vitally affected. Having perused the document, I do not find that the document is so vital as to reverse the findings. Therefore, the application for adducing additional evidence is declined.

For the reasons mentioned above, this appeal fails and the same is dismissed.