Rajinder vs Ram Kishan and Another

Surya Kant, J.—This regular second appeal is filed by the plaintiff, whose suit for permanent injunction has been dismissed by both the Courts.

The dispute pertains to possession over a plot measuring 110 sq. yards situated within the Abadi Deh of Village Anwali shown with words ''ABCD'' in the site plan appended to the plaint and the boundaries whereof are descripted in para 1 of the plaint. According to the plaintiff appellant, the aforementioned plot is an ancestral property and he has been using the same for domestic purposes since the time of his forefathers. Alleging that the defendant-respondents want to dispossess him forcibly from the said plot, the present suit was filed.

Upon notice, the respondents herein contested the suit by taking preliminary objections, inter alia, to the effect that the appellant has no locus standi; no cause of action; suppression of true facts and that the suit was also bad for non-joinder and mis-joinder of the necessary parties.

On merits, the claim of ownership of the appellant over the subject property was disputed. It was averred that the grandfather of the appellant and the father of the respondent were allotted a plot measuring 110 sq. yards by the Gram Panchayat out of which, the grandfather of the appellant got 60 sq. yards whereas father of the respondent got 50 sq.yards during the partition. As far as his father''s share is concerned, the appellant had already sold the same to Amar Singh son of Kishan Lal on 10.5.2000 whereas the defendant-respondent also sold his share measuring 50 sq. yards to Om Parkash son of Mauji Ram on 17.5.2000. It was, thus, averred that neither the appellant-plaintiff nor the defendant-respondent has any right, title or interest over the subject property.

The trial Court framed the following issues:

Whether the plaintiff is owner in possession of the suit property, as alleged? OPP

Whether the plaintiff is entitled to decree for permanent injunction, as prayed for? OPP

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Whether the plaintiff is guilty for suppression the true and material facts from the Court? OPD

Whether the suit is bad for non-joinder and mis-joinder of necessary party? OPD

Whether the suit of plaintiff is false and frivolous and has been filed just to harass the defendant and as such, is liable to be dismissed with special costs u/s 35-A CPC? OPD

Relief.

In support of issue No. 1, the plaintiff-appellant produced oral evidence comprising of his own deposition and of one Inder son of Nand Ram (PW-2), Banwari son of Chunni (PW-3) and also adduced site plan Ex.PW1/A as documentary evidence. Similarly, the respondent-defendant examined himself as DW-2, Om Parkash son of Mauji Ram (DW-1), Amar Singh son of Kishan Lal (DW-3), Mahender son of Mauji Ram (DW-4) and Sohan Lal Draftsman (DW-5). He also produced an agreement dated 17.5.2000 Ex.DW1/A, site plan Ex.DW1/B and photocopy of the Aks-Sijra as documentary evidence.

On a consideration of the evidence on record, both the Courts have concurrently held that the appellant has failed to prove his ownership over the subject property. It has also been held that the evidence led by the respondent-defendant is of more credence and relying upon the same, it has been further held that originally a plot measuring 110 sq. yards was allotted by the Gram Panchayat jointly to the grandfather of the plaintiff appellant and father of the defendant-respondent. Both the Courts have further believed the version of the respondent-defendant that upon partition, the said plot was divided into two parts i.e. one went to the share of the appellant''s Grandfather and the other to the share of the respondent''s father and they have already sold their respective shares to the vendees mentioned by the respondent-defendant in his written statement.

The Courts below have also not found the appellant to be in possession of the subject property.

As the facts speak for themselves, the questions which have arisen for consideration are pure questions of fact. It is not the case of the appellant that either the evidence on record has been misread or over-looked by the Courts below or that the findings noticed above are perverse in nature.

Thus, no question of law, much-less a substantial question of law arises for consideration of this Court. Accordingly, the appeal is dismissed.