Rajesh Kumar and Others vs Ram Saran and Others

Paramjeet Singh, J.

CM No. 5002-C of 2014

The present application is for impleading the legal representatives of deceased Gurmel Singh-defendant No. 1, who is stated to have expired on 09.05.2011. Legal representatives of deceased Gurmel Singh are mentioned in para No. 2 of the application.

Application is allowed subject to all just exceptions and for the limited purpose to prosecute this appeal.

RSA No. 2044 of 2014

Instant regular second appeal has been preferred by the appellants/defendants against the judgment and decree dated 06.02.2014 passed by learned Additional District Judge, Yamuna Nagar at Jagadhri whereby judgment and decree dated 13.11.2010 passed by learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri has been set aside and suit for possession of respondent No. 1/plaintiff has been decreed.

For convenience sake, reference to parties is being made as per their status in the suit.

The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for possession on the ground that they are owners of the land bearing khasra No. 256 measuring 5 marlas, fully detailed in the plaint, situated at Village Bilaspur, Hadbast No. 279, Tehsil Jagadhri, District Yamuna Nagar along with one Jungle Jalebi tree standing therein, however, in the last week of November 2004, defendant nos. 1 to 6 illegally occupied the same by putting manure pit, gohara and wood etc. The plaintiffs got their land demarcated on 02.06.2005 through revenue authorities and defendant nos. 1 to 5 were found in illegal possession of it. The plaintiffs requested the defendants to hand over the vacant possession of land in question, but they refused and also threatened to raise construction thereon. It was pleaded that the plaintiffs are entitled for compensation of Rs. 100/- per day from the defendants for illegal use and occupation of the land in dispute.

Upon notice, defendants appeared. Defendant nos. 1 to 5 filed joint written statement-cum-counter claim taking preliminary objections that suit is not maintainable in the present form; demarcation alleged by the plaintiffs was not carried out as per the instructions of the Financial Commissioner. On merits, it was pleaded that the defendants are owners in possession of khasra No. 255, wherein they have planted one jungle jalebi and one tunt tree and plaintiffs have no concern of any kind with it. It was further pleaded that while conducting the demarcation of khasra No. 256, area of khasra nos. 255 and 254 was not completed and plaintiffs have no right, title or authority to interfere in their possession over khasra No. 255, which is owned and possessed by them.

On the basis of the pleadings of the parties, the Court of first instance framed the following issues:-

Whether plaintiffs are owners of the suit land, as alleged? OPP

Whether suit is not maintainable? OPD

Relief.

The Court of first instance after perusal of the evidence led by the parties, recorded issue-wise findings and dismissed the suit of the plaintiffs, as well as, counter claim filed by defendant nos. 1 to 5 vide judgment and decree dated 13.11.2010. Against that, plaintiff-Ram Saran preferred an appeal which has been allowed by the lower appellate Court vide judgment and decree 06.02.2014 and judgment and decree of the Court of first instance has been set aside and suit of the plaintiffs has been decreed. Hence, this second appeal.

I have heard learned counsel for the appellants and perused the record.

Learned counsel for the appellants has submitted that the following substantial questions of law, formulated in para No. 6 of grounds of appeal, arise for consideration in this second appeal:-

i) Whether the plaintiff/respondent is bound to prove his case on the strength of his own evidence and whether he is allowed to take benefit of the weakness of appellants/defendants?

ii) Whether the impugned judgment and decree of learned lower appellate Court is perverse to the evidence available on file of the case?

iii) Whether the ld. lower appellate Court has misread the documents and misconceived the evidence while delivering the impugned judgment and decree?

iv) Whether the findings of the ld. lower appellate Court are based on no evidence and hypothetical considerations?

v) Whether the impugned judgment and decree of learned lower appellate Court are liable to be set aside?

Admittedly, the plaintiffs are owners of khasra No. 256. The same is also clear from the jamabandi for the year 2002-03 (Ex. P4) and as per jamabandi for the year 2002-03 (Ex. D1), Mohna, predecessor-in-interest of defendant nos. 1 to 3 is shown as owner of land bearing khasra No. 255. The plaintiff had brought evidence on record to show that defendants are in possession of Khasra No. 256. The lower appellate Court, after appreciating the evidence on record, has recorded finding, which reads as under:-

Admittedly, one of respondent/defendant Gurmel Singh stepped into witness box as DW3 and in his cross examination, he admitted that demarcation of land bearing khasra No. 256 taken place at the spot in presence of parties and in that demarcation report their illegal possession was found by local commissioner. This witness further testified on oath that after coming to know that they are in unauthorised possession of khasra No. 256, they vacated the same and now defendant No. 6 is in possession of land bearing khasra No. 256. The statement of DW3 Gurmel totally falsify the stand of respondents/defendants and it amounts to admit the claim of appellant/plaintiff. After going through the oral evidence of DW3 Gurmel Singh, this Court reached at considered opinion that demarcation report actually taken place in presence of parties to the case. Admittedly, respondents/defendants despite knowledge of demarcation by Rajeshwar Parshad PW2, not challenged that demarcation report and when appellant/plaintiff proved this demarcation report Ex. P1 on case file, then respondents/defendants were supposed to produce evidence in rebuttal against this demarcation report to falsify the same but respondents/defendants have not done so. Demarcation report/local commissioner report Ex. P1 can''t be disbelieved automatically until and unless there is false motive of preparation of said report proved on case file or there is violation of any rule while preparing local commissioner report. It is settled law that if local commissioner report is carried out by revenue official in official capacity in presence of parties and none of the party objected the same and raised objection then local commissioner report is to be admitted by the parties to the case. As per local commissioner report Ex. P1 Burji was traced out at the spot but as no Burji was found nearby the place then parties to the case admitted land bearing khasra No. 68/125 as correct point for measurement and after measurement land bearing khasra No. 256 was found in possession of present respondents/defendants.

There is no evidence oral as well as documentary to falsify the report of local commissioner produced on behalf of the respondents/defendants, meaning thereby, respondents/defendants admitted that local commissioner report Ex. P1 is as per spot. All the witnesses produced on behalf of the respondents/defendants admitted that defendant No. 6 is in possession of the suit land bearing Khasra No. 256. Learned lower court not appreciated the evidence produced on behalf of both parties, specially local commissioner report Ex. P1. So, findings of learned trial court are not sustainable and are liable to be set aside.

Lower appellate Court has recorded a finding that defendant No. 6 is in possession of land bearing khasra No. 256.

In view of findings of fact recorded by the learned lower appellate Court after appreciating the evidence, no question of law, much-less substantial question of law, as claimed, arises in this second appeal.

No other point has been argued.

In view of above, I do not find any illegality or perversity in the impugned judgment and decree.

Dismissed. However, it will not affect the rights of the appellants qua khasra No. 255. They will be at liberty to proceed in accordance with law and may get the demarcation of their area which they claim.