Ramgyan Singh & Ors vs Pankaj Singh & Ors

Heard on admission.

This second appeal is preferred by the appellants/plaintiffs under Section 100 of CPC against the concurring judgment and decree dated 12/5/2018

passed by Third Additional District Judge, Morena in Civil Appeal No. 27-A/2017; whereby, the judgment and decree dated 6/10/2017 passed by Third

Civil Judge, Class-I, Morena in Civil Suit No. 4-A/2016, dismissed the suit of the appellants/plaintiffs, has been affirmed.

Precisely stated facts of the case are that appellants/plaintiffs instituted a suit for declaration of title and permanent injunction in respect of suit

property as mentioned in the plaint situate at village Kheda Mevda, Tahsil and District Morena against the respondents/defendants on the allegations

that the disputed land belonged to Ratiya S/o Ochha Kori and he out of the said disputed land sold part of the land situate at Morena-Ambah road ad-

measuring 0.189 hectare to Ram Singh S/o Mangal Singh vide registered sale deed dated 29/7/1995. On the basis of said sale deed, he became

Bhoomiswami and possessor of land adjacent to Morena-Ambah road. Thereafter, Ram Singh out of the aforesaid purchased land, further sold the

land on 21/11/2011 (Ex. P/2) vide registered sale deed executed in favour of plaintiffs No. 1 to 4. On the basis of which, plaintiffs No. 1 to 4 became

Bhoomiswami and possessor and raised construction of house and residing therein. It is further alleged that plaintiff No. 1-Ramgyan on 21/11/2011

itself purchased a piece of land ad-measuring 1100 sq. ft. as per schedule No. 1 from Ram Singh in the eastern side of the house of Prabhulal and got

constructed the house. It was further alleged that after death of Ratiya, defendant No. 1-Pankaj Singh just to create dispute, without the knowledge of

plaintiffs, got executed the registered sale deed dated 11/7/2014Â from defendants No. 2 to 5, who are legal heirs of deceased Ratiya and on that

basis tried to take possession of the house allegedly belongs to plaintiff No. 1.Therefore, instant suit was filed.

Defendant No. 1 Pankaj Singh appeared and filed written statement denying the plaint allegations. It was contended that no partition of land has taken

place and plaintiffs with a view to grab the land instituted the present suit. Other grounds were also taken.

Trial Court framed as many as six issues and thereafter evidence was led by the parties. On the basis of evidence adduced, documents produced and

submissions pleaded, trial Court dismissed the suit filed by the appellants/plaintiffs.

Appellants/plaintiffs preferred the first appeal under Section 96 of CPC but met with the same fate, therefore, instant second appeal under Section 100

of CPC.

As per learned counsel for the appellants, the judgments and decree passed by the Courts below are manifestly illegal and perverse, therefore,

deserve to be set aside. Admittedly the entire land was owned and possessed by Bhoomiswami Ratia and he was having full rights to alienate the

same. In pursuance to it, from survey No. 646 min (new survey No. 1758) part of land has been purchased by the appellants and possession was

handed over. Same was proved in the trial Court but trial Court wrongly held that the purchased land is not according to Schedule 1 and 2 of the plaint.

Admittedly, the plaintiffs are prior purchaser of the land from Ratiya i.e. father of defendants No. 2 to 5 but execution of sale deed dated 11/7/14 has

not been proved by defendant No. 1 including the delivery of physical possession of specific portion of the land to defendant No. 1. Plaintiffs have got

the land demarcated and have produced demarcation report which clearly depicts that all the four houses of the plaintiffs are in existence adjacent to

Morena-Ambah Road. In absence of rebuttal by defendant No. 1, Courts below erred in ignoring the said report and proceeding on wrong assumption.

Plaintiffs are in possession of the land which they purchased long back and residing in their house constructed over the disputed land, therefore,

defendant No. 1 cannot claim to be the possessor of the land, which is not vacant on the spot.

Heard learned counsel for the appellants and perused the impugned judgments passed by the Courts below.

Appellants/plaintiffs in the present case have filed a suit for declaration and permanent injunction and for declaration the sale deed dated 11/7/2014 as

void. The declaration has been sought by the plaintiffs in respect of Annexure P/1 and P/2 enclosed with the plaint. The said annexures No. 1 and 2

disclose the part of property of survey No. 1758, Therefore, trial court framed the issue specifically in respect of land situate at survey No. 1758 as

referred in Annexure P/1 and P/2 attached with the plaint and thereafter given its finding. Following issues were framed by the trial Court for

adjudication:-

**1- D;k] okn i= ds lkFk layXu ifjf'k""V Øekad 1 o 2 esa of.kZr laifRr Hkou xzke [ksMk+ eosnk rglhy o ftyk eqjSuk dh Hkwfe losZ Øekad 1758 dk

va'kHkkx ifjf'k""V Øekad 1 dh laifRr dk oknh Øekad 1 ,oa ifjf'k""V Øekad 2 esa of.kZr laifRr ds oknh Øekad 2 yxk;r 4 Hkfwe Lokeh ,oa

vkf/kiR;/kkjh gS\ 2- D;k izfroknhx.k oknhx.k dh mDr LokfeRo ,oa vkf/kiR; dh Hkwfe esa voS/k :i ls gLr{kis djus ds fy, iz;kljr gS\

3 D;k] fnukad 11-07-14 dk foØ;&i= oknhx.k ds LoRo ,oa vkf/kiR; ds eqdkcys voS/k] 'kwU; ,oa fu""izHkkoh gS\

4 D;k] oknhx.k oknxzLr laifRr ds laca/k esa LFkkbZ fu""ks/kkKk izkIr djus ds vf/kdkjh gS\

5 lgk;rk ,oa O;; \

6 D;k okn esa i{kdkjksa ds vla;kstu dh ck/kk gksus ds dkj.k okn vizpyu ;ksX; gS \**

While dealing with said issues, trial Court in para 21 has discussed the conclusion. Para 21 reads as under:-

**21- tgka rd izfroknhx.k oknhx.k dh mDr LokfeRo ,oa vkf/kiR; Hkwfe esa voS/k :i ls gLr{ksi djus ds fy, iz;kljr gksuk ,oa oknhx.k oknxzLr laifRr ds

laca/k esa LFkkbZ fu""k/kkKk dh lgk;rk izkIr djus ds vf/kdkjh gksus dk iz'u gS rks oknhx.k us ;g izekf.kr ugha fd;k gS fd os ifjf'k""V Øekad 1 o 2 esa

of.kZr vk/kkj lhek vuqlkj Hkwfe vkf/kiR; esa gSA tc oknhx.k dk ifjf'k""V Øekad 1 o 2 vuqlkj vkf/kiR; gh izekf.kr ugh gksrk gS rks mDr fLFkfr esa

izfroknhx.k oknhx.k dks voS/k :i ls gLr{ksi fd;k tkuk ;k oknhx.k izfroknhx.k ds fo:) fdlh Hkh izdkj dk dkbs Z O;kns'k izkIr djus ds vf/kdkjh gksus dk rF;

fo'oluh; izdV ugha gksrk gS] D;ksafd oknhx.k us ifjf'k""V Øekda 1 o 2 fof/kor~ izekf.kr ugha fd;k gSA mDrkuqlkj oknhx.k dh vksj ls izLrqr rdZ ekU;

fd, tkus ;ksX; ugha gS] tcfd izfroknhx.k dh vksj ls izLrqr rdZ ekU; fd, tkus ;ksX; gSA ,rn~ }kjk okn fo""k; Øekad 1 dk fujkdj.k bl izdkj fd;k tkrk gS fd

oknh Øekda 1 Hkfwe losZ Øekad 1758 ds va'k Hkkx 22x  50 ¾1100 oxZQhV dk fodz;&i= izn'kZ ih&3 vuqlkj LoRo/kkjh ,oa oknh Øekad 2

yxk;r 4 Hkwfe losZ Øekad 1758 ds va'k Hkkx 0-22 vkjs esa ls jdok 0-055 gSDV;s j foØ;&i= izn'kZ ih&2 vuqlkj LoRo/kkjh gS] fdra q oknhx.k

ifjf'k""V Øekad 1 o 2 esa of.kZr prqj lhek vuqlkj LoRo ,oa vkf/kiR;/kkjh ugha gS rFkk oknfo""k; Øekad 2 o 4 dk fujkdj.k ugha ds :i esa fd;k tkrk gSA**

Trial Court has categorically held that plaintiffs are title holder and possessor of the part of the land but certainly not the owner and possessor of land

as mentioned in Annexure 1 and 2 attached with the plaint, therefore, plaintiffs in respect of same could not prove their case and dismissed the suit. In

appeal preferred by the plaintiffs against the judgment and decree passed by the trial Court, first appellate Court also considered the issues in detail.

During the final arguments, plaintiffs have tried to cause necessary amendment in the appeal memo by incorporating boundaries / four corners

referred in Annexure A/2 but the said aspect has been dealt with by appellate Court and rightly declined the prayer. This endeavour further

establishes the fact that plaintiffs may be the owner of part of survey No. 1758 but certainly not the owners and possessor of the land in question as

referred in the plaint through Annexure 1 and 2. Once the trial Court as well as appellate Court given findings of fact on the basis of appreciation / re

appreciation of evidence led by the parties then this Court has no scope left for interference.

In the factual arena, same attained finality.

Having perused the impugned judgments and record of Courts below, in the opinion of this Court, both the Courts below have not committed any error

of law in dismissing the suit on concurrent findings of fact which are in fact and in effect in the realm of facts and do not warrant any interference

under Section 100 of CPC by this Court. No question of law, much less substantial question of law arises in this appeal. Admission declined. The

appeal sans merits, is hereby dismissed.