Santosh vs Vikrant

Rajesh Bindal, J.—The plaintiff is before this court against the judgment and decree of the learned lower appellate court, whereby that of the trial court was reversed and suit of the plaintiff for declaration and consequential relief of joint possession and permanent injunction was dismissed.

Briefly, the facts available on record are that the appellant-plaintiff filed a suit for declaration claiming that she along with defendants No. 1, 2 and 5 are owners in possession of 4/30 share and defendants No. 3 and 4 are owners in possession of 1/20 share out of 1/6 share in land measuring 154 kanals and 8 marlas comprised in Khewat No. 5, Khatoni Nos. 6 and 7, situated within the revenue estate of village Anwali, Tehsil Gohana, District Sonepat. It was claimed in the suit that the plaintiff along with defendants are coparceners in the suit property, which is ancestral in the hands of Dariya Singh as he had inherited the same from his father.

The learned trial court decreed the suit filed by the plaintiff-appellant, whereas the learned lower appellate court reversed the findings recorded by the trial court.

Learned counsel for the appellant submitted that excerpts from the revenue record were produced in the form of Ex. PW3/A and Ex. PW4/A, which clearly established that the property in dispute was ancestral in the hands of Dariya Singh, father of the appellant. As a result of this, the appellant and other members of the family got shares in the property by inheritance. In the light of the aforesaid evidence on record, the judgment and decree passed by the learned lower appellate court, while reversing the findings recorded by the trial and dismissing the suit filed by the appellant, deserve to be set aside and that of the trial court be restored.

After hearing learned counsel for the appellant, I do not find any merit in the submissions made. The issue regarding the property being ancestral has been dealt with by the learned lower appellate court in detail. It was the star point of the appellant, on which the entire suit was based. The appellant to prove her claim produced PW3-Krishan Kumar Bakshi, Sadar Patwari, who produced excerpts (Ex. PW3/A and Ex. PW4/A) from the revenue record. The excerpts were prepared from the old record, which was maintained in Urdu. The witness, who appeared in the court, admitted in his cross-examination that he was not fully conversant with Urdu language. Further the witness had not prepared the record himself. He merely produced the excerpts. The original record from where the excerpts were prepared was not produced to enable the court to compare the same while examining their authenticity. The witness further admitted in his cross-examination that it is the duty of Sadar Kanungo to prepare Intakhab, whereas he was Sadar Patwari. The learned lower appellate court has further referred to Rule 5(v) and (vii) of Chapter 9 of High Court Rules and Orders, Volume-I, which provide that excerpts from revenue record should be true copy. It should be proved by Special Kanungo or Patwari Moharrir by taking the original records to the court. It also provides that the Court should, as a rule, compare with the original records some of the entries in the abstract.

The learned court below, while referring to the judgments of this court in Banta Singh and others Vs. Phuman Singh and another and Hawa Singh Vs. Dayanand and Others, finally opined that in the absence of original record, the court could not opine that the property in dispute was ancestral, hence, the appellant was entitled to a share therein. The findings to that effect recorded by the lower appellate court cannot be said to be erroneous as the same have been recorded on proper appreciation of evidence in conformity with the legal position. Nothing has been referred to by learned counsel for the appellant, which could establish that the findings recorded by the lower appellate court are perverse or not in conformity with law.

No substantial question of law arises in the present appeal.

Dismissed.