Raghunandan Kumar vs Ramesh Lal

B. Rai, J.—This appeal has been directed against the judgment and decree, dated August 17, 1979 of the Court of Additional District Judge, Hoshiarpur, whereby he affirmed the findings of the trial Court and dismissed the appeal of the defendants, with costs.

Brief facts of the case are that Ramesh Lal and Jowahar Lal minor sons of Chuni Lal through their father instituted the suit for possession of land measuring 4 Marlas comprised in Khasra No. 184/1 bearing property No. BI187 bounded as North : Property No. DI181 owned by Sahib Chand, South : Takia bearing Khasra No. 184/2, East : Takia land in possession of defendants, West Bazar, situated at Dasuya. It was pleaded that the property in dispute was evacuee property. It was purchased by Piara Singh son of Jagat Singh for Rs. 505/ in an open auction. Piara Singh further sold it to the plaintiffs for Rs. 600/ through a Sale Deed, dated November 18, 1968 and delivered possession to the plaintiffs. It was further pleaded that Raghunandan Kumar, Hari Mitter and Jugal Kishore sons of Bal Krishan were in illegal possession of the suit land. The plaintiffs sought possession of the land on the basis of ownership. They further pleaded that the plaintiffs had earlier brought a suit for injunction but during the pendency of the suit, defendants took forcible possession of the land in dispute. Consequently, the suit was withdrawn with permission to bring a fresh suit on the same subjectmatter.

The suit was contested by the defendants raising preliminary objection that the suit was not properly valued. On merits, it was denied that Piara Singh was owner of the suit property and it was purchased by the plaintiffs from him. The defendants asserted that the suit property is in their possession under valid title. According to them, their title was hostile to the owners. About the earlier suit, it was pleaded that the same was dismissed. It was denied that possession of the suit property was taken by them during the pendency of the earlier suit. The pleadings of the parties gave rise to the following Issues :

(1) Whether Piara Singh purchased land measuring 4 marlas bearing khasra No. 184/1 and property Unit No. BI183 in an open auction ? OPP

(2) In case issue No. 1 is proved, whether the plaintiffs are the owners by purchase of the suit property ? OPP

(3) Relief.

After considering the evidence led by the parties, it was held under Issue No. 1 that Piara Singh purchased land measuring 4 Marlas bearing property No. BI183 comprised in Khasra No. 184/1 in an open auction and decided this issue in favour of the plaintiffs. Under Issue No. 2, it was held that the plaintiffs are the owners of the suit property by purchase from Piara Singh. Consequently, the suit was decreed for possession of land measuring 4 Marlas comprised in Khasra No. 184/1 and Property Unit No. BI183 as described in the head note of the plaint, by the trial Court with costs.

Defendants preferred an appeal. The learned appellate Court affirmed the findings of the trial Court and dismissed the appeal.

Hence, this second appeal at the instance of the defendants.

I have heard the learned counsel for the parties and have carefully gone through the record.

The claim of the plaintiffs is that they purchased the land measuring 4 Marlas bearing Khasra No. 184/1 as per Jamabandi for the year 196768 bounded as North; Property No. BI181 owned by Sahib Chand, South : Takia bearing Khasra No. 184/2, East : Takia land in possession of defendants, West : Bazar. According to them, this piece of land was purchased by them from Piara Singh son of Jagat Singh who had purchased the same in an open auction from Tehsildar Sales vide Sales Certificate, dated January 10, 1966. The boundaries in the Sale Certificate are given as North : BI184, South : Takia, East : Taur and Takia, West : Bazar, whereas in the certified copy of Sale Certificate, in favour of Piara Singh son of Jagat Singh in respect of Property No. BI183, the boundaries as given are, North : BI181, South : Takia, East : Taur and Takia, West : Bazar. Thus, boundaries given in Sale Certificate, dated January 10, 1966, do not tally with the boundaries given in the certifeid copy of the Sale Certficate. Not only this, Exhibit D1 is a certified copy of the site plan of Property No. BI183. A perusal of it would show that it is bounded as North : Open and on the right EastNorthern corner Takia is mentioned, South : Road, East : Takia, West : BIV184. It is further shown that this entire plot is divided into two parts. Measurements of the boundaries of the plot have been given on the Northern side of the other portion and it is described to be a temporary shed. Though the measurements of the boundaries of the plot on the Southern side are given and on the Eastern side of it open space has been shown, yet it is not clear whether the dimensions are given in inches, yards or feet. Therefore, it is not easily discernible that the site plan Exhibit D1 represents Property No. BI183 especially when boundaries are vague and ambiguous and do not tally with boundaries given in the plaint or the Sale Certificate, dated January 10, 1966. The learned trial Court has also observed that the dimensions given in Exhibit D2 (it should be Exhibit D1) do not lead anywhere because it is not mentioned whether the dimensions are given in inches, yards or feet. However, he proceeded to identify the property from the surrounding boundaries only to ascertain its area. In different documents the different boundaries of the suit property have been given. The learned trial Court has tried to make out a case for the plaintiffs that there can be a clerical mistake in mentioning the Number of the suit property either in Exhibit PD or Exhibit D1. Therefore, the conclusion of the trial Court that the site plan shows that they pertain to one and the same property are based on suppositions and presumptions especially when it is not the case of the plaintiffs that in different documents wrong entries have crept in on account of some mistake on the part of the clerical staff of the Department. The appellate Court also slipped into error without properly appreciating the evidence and proceeded to affirm the findings of the trial Court.

For the reasons recorded above and in the facts and circumstances of the case, I am of the view that there is lack of sufficient, cogent and convincing evidence to fix the identity of the property in dispute. The Court is not expected to make out a new case for a party to the suit. Therefore, the judgments and decrees of the Courts below deserve to be set aside. Accordingly, the same are set aside and the case is remanded with the direction to get the demarcation report in respect of property in dispute from the officials of the Revenue Department at the expense of the plaintiffs and decide the case afresh in accordance with law after permitting both the parties to lead evidence in support of their respective claims. The plaintiffs shall complete their entire evidence within one month from the date of receipt of records of this case and the defendants shall complete their evidence in next month. At any cost, the trial Court shall not grant any more time and proceed to decide the case within two months after the completion of the evidence by the parties.

Parties, through their counsel are directed to appear in the trial Court, on March 10, 1997.

The appeal stands deposed of in the above said terms.