Ram Singh vs Partap Singh

Arun Palli, J.—Suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 11.03.2008. Appeal preferred against the said decree failed and was accordingly dismissed vide judgment and decree dated 06.09.2010. That is how, the defendant is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

In short, in a suit filed by the plaintiff, he prayed for a declaration and injunction that he was the owner in possession of the suit property located in khewat No. 384, khatoni No. 449, mustatil No. 25, killa No. 26, measuring 5 kanals 7 marlas situated in the revenue estate of Khori, Tehshil and District Rewari. Plaintiff had purchased an area measuring 4 kanal 13 marla out of the said land vide registered sale deed dated 14.09.1998. One Dharam Chand and Usha were also co-sharers along with the plaintiff in the said killa No. 26. Plaintiff purported to have also purchased property in the west of the above said property from Smt. Shashi daughter of Harish Chand and Roopkanti widow of Harish Chand, vide sale deed dated 02.02.2000. Thus, the plaintiff purports to be the owner in possession of the land marked ABCD highlighted in red colour in the site plan. It was averred that immediately after purchasing the said property, plaintiff raised a tin shed on killa No. 26 and another tin shed on the disputed property. Further, property of the defendants was lying to the western side beyond the raasta adjacent to the disputed property. As the defendants were threatening to dispossess the plaintiff, thus the suit.

Defendants, in defence, pleaded, inter alia, that the plaintiff was not the owner in possession of the disputed property. Rather, the defendants set up a title in themselves, viz-a-viz the disputed portion. It was claimed that in the west of mustatil No. 25 killa No. 26 exists abadi area measuring one kitta and the said property stretches upto raasta aam highlighted in blue colour and the defendants were owner of the said area. Further, the defendants claimed to have raised pacca diwar, tin shed, chhapar etc. on the same. It was further claimed that on this abadi area i.e. from killa No. 25/26 till raasta sare aam on western side, there was one kitta aahata measuring 40 ft. in east, 40 ft. in west, 62 ft. in north and 52 ft. in southern directions as highlighted in the site plan. Location of killa No. 25/26 was disputed and it was claimed that on western side of killa No. 25/26 was an abadi area owned and possessed by the defendants.

On an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that the site plans relied upon by the parties to the lis contradicts their respective stands and the revenue record. Thus, learned trial Court predicated its analysis and conclusions on the demarcation report Ex. P4 and Shazra Aks Ex. P7, to determine the real dimensions and situation of the suit property. It was observed that the Field Kanungo was directed, pursuant to the order dated 04.06.2003 passed by the Court, to report as to whether any portion of tin shed falls in rectangle No. 25, killa No. 26, after verifying revenue records. And the Field Kanungo had reported that in killa No. 25/26, a tin shed measuring 39 feet (east) x 38 feet (west) 15 feet (south) x 25 feet (north)= 742 feet, had been constructed and half of that tin shed extended into the old abadi area. That being so, it was observed that the report Ex. P4, brought the entire controversy to rest as it stood crystallised that the tin shed constructed on killa No. 25/25 also covered old abadi area. Thus, as so observed, the learned trial Court was of the view that the plaintiff was the owner in possession of killa No. 26 and had raised tin shed on the same. It was also found that it was this construction of the plaintiff, which indeed covered old abadi (disputed area), meaning thereby plaintiff was in possession of the disputed area. Fact, that the plaintiff was owner in possession of the disputed area was further corroborated by the deposition of Attar Singh DW2. It was concluded that once the demarcation report showed that tin shed raised on killa No. 25/26 stretches over the abadi area, then half of the things which the defendants claim to have placed on the disputed area i.e. Kuri, bitora, fuel wood etc. automatically fell in killa No. 25//26. Thus, the learned trial Court observed that this completely dents the case of the plaintiff viz-a-viz his claims for possession over disputed portion. Resultantly, the suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 11.03.2008 and consequently the defendants were restrained permanently from interfering in killa No. 26 of rectangle No. 25 and in the adjacent area towards west direction till rasta, i.e. in the old abadi area, which was observed to be under the ownership and possession of plaintiff.

Being dis-satisfied with the said decree, defendants preferred an appeal. Learned First Appellate Court reviewed the matter in issue, evidence on record in its entirety and on an analysis thereof, found itself in concurrence with the view drawn by the trial Court in support of the findings therein. It was observed that there was sufficient evidence on record to show that the suit property was purchased by the plaintiff from valid title holder. And this fact was corroborated by none other than DW2 Attar Singh. Further, case of the plaintiff had been proved by his vendor i.e. Smt. Shashi PW4 who supported the case of the plaintiff on all fores. She deposed that the disputed plot consisted of area measuring 330 feet, which was ancestral property and vide sale deed Ex. PW4/2, the same was sold to Partap i.e. the plaintiff. She also proved the site plan Ex. PW4/3 as well as execution of the sale deed Ex. PW1/2 in favour of the plaintiff regarding area of killa No. 26. She had categorically deposed that Ram Singh etc. never remained owner in possession of the disputed plot. Learned First Appellate Court, on consideration of the record observed, that the defendants had claimed the suit property as their ancestral property but no document of title was produced on record. Resultantly, vide judgment and decree dated 06.09.2010, the learned First Appellate Court dismissed the appeal.

I have heard learned counsel for the appellant at length and examined the judgments rendered by both the Courts below. Concededly, demarcation report Ex. P4 reads as thus: "In killa No. 25/26, a tin shed measuring 39 feet (east) x 38 feet (west) 15 feet (south) x 25 feet (north)= 742 feet, has been constructed. Half of this tin shed extends into the old abadi area." Thus, it stood crystallised that the tin shed constructed on killa No. 25/26 also covered old abadi area. This, concluded that the plaintiff who happened to be the owner in possession of killa No. 25/26 had indeed raised a tin shed even on the disputed portion. It was the construction of the plaintiff which covered the old abadi area. That being so, both the Courts found plaintiff to be in actual and physical possession of the disputed portion. All what the learned counsel for the appellants contends is that evidence on record does not prove the ownership of plaintiff over the disputed site. Even if, that is assumed to be so, still, it does not enhance the case of the defendants a bit. Concededly, plaintiff has proved himself to be in actual physical possession of the disputed site, fact, which could not be disputed by learned counsel for the appellants. Defendants have failed to prove their possession as well as title/ownership qua the disputed site. Nothing could be shown to prove either of the two. Thus, the defendants had completely no right, title or interest in the disputed site, and, therefore, they could hardly raise any such issue.

In the wake of the position as set out above and the conclusions that have concurrently been recorded by both the Courts below, there hardly exists any ground, least plausible in law to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration in the present appeal. The appeal being devoid of merit is accordingly dismissed.