Sapri and Others vs Raghulal and Others

Shishir Kumar, J.—Heard learned Counsel for the Appellants and Sri Arun Kumar Singh appearing for the Respondents.

This is a Defendants'' second appeal arising out of suit filed by Plaintiff-Respondents as Suit No. 380 of 1988 for injunction and dispossessing the Defendants from the property in dispute. The suit was decreed and the appeal filed by the Defendants has been dismissed.

The facts as stated in the plaint by the Plaintiffs is that the property in dispute is Abadi of the Plaintiffs. A pond is towards the east of the said property and towards the west, a plot of Mahendra Singh is there and in the north the Abadi of Nav Bahar Singh as well as to the south there is property of Bhoore Singh and Rakesh. It has further been averred that the Plaintiffs are in possession of the said property but Defendants forcibly want to dispossess the Plaintiffs and want to take possession. Hence, the suit has been filed.

Defendants filed a written statement which was numbered as Paper No. 25 Ka denying the allegations made in the plaint stating therein that the facts stated by the Plaintiffs are incorrect to the effect that Defendants have unauthorisedly occupied the land in dispute. It is also incorrect to state that the Plaintiffs are tethering the animals and keeping the fodders of the animals there for the last 50 years. The Plaintiffs have got no concern with the property in dispute and it is not the ancestral property of the Plaintiff- Respondents. The property in dispute is ancestral property of the Defendants and one Suit No. 55 of 1934 between Rani Phool Kumari v. Kalu was filed in which the Defendants'' father was one of the parties. A compromise was arrived at and it was accepted that the Defendants'' father is the owner of the property. Defendants No. 3 and 4 have filed their written-statements denying the claim of the Plaintiff-Respondent and further stated that in the earlier proceedings the rights of the parties have already been adjudicated, therefore no relief can be granted to the Plaintiffs.

The Trial Court framed various issues and one of the main issues was whether the Plaintiff is the owner in possession of the property in dispute or not? Further an issue was framed that whether the Defendants has taken forcible possession of the property as stated in para 5-A of the plaint. The trial Court after considering the evidence on record on issue No. 1, after considering the statement of P.W. 1 Sri Raghu Lal and P.W. 2 Natthu Singh and on the basis of paper No. 11 Ga as well as Paper No. 12 Ga which is a copy of the Khatauni has recorded a finding that from the perusal of the judgment of the Case No. 55 of 1934 which is the basis of the claim of the Defendants, the Defendants have failed to prove that this was the same property in dispute in Suit No. 55 of 1934. P.W. 1 in his statement has stated that he is the son of Rodha Singh and the description of the property made plaint and in the statement in support thereof identified the property. They wanted to raise some boundary wall and the Defendants objected to it. Therefore, the suit has been filed. P.W. 2 Natthu Singh has also supported the statement of P.W. 1. As regards the statement of D.W. 1 and D.W. 2, a finding has been recorded that from the perusal of the judgment in Suit No. 55 of 1934 it does not establish that ancestors of the Defendants were owner of the property in dispute. Further D.W. 2 who has been produced on behalf of the Defendants is not able to prove even the death of the father of the Defendants.

In such circumstances, after considering the evidence on record of the Plaintiffs and Defendants as well as records, trail Court, has recorded a finding that Defendants have failed to prove that he is the owner in possession of the property in dispute. A finding on Issue No. 3 has been recorded that during the penedncy of the case the Defendants have forcibly evicted the Plaintiff which is also proved on the basis of the statement made by P.W. 2. After recording the said finding, the trial Court vide its judgment and order dated 7.11.1998 has decreed the suit. Defendants aggrieved by the aforesaid judgment and decree filed an appeal. The appellate Court after consideration of the evidence on record and the statement of D.W. 1 and D.W.2 has recorded a finding that when the property in dispute was inspected by the Commissioner, vide its report paper No. Ga-20 clearly shows that there is a Chhappar and on the basis of the statement of villagers, it is clear that on 3.9.1998 on the date of inspection, no pipe line was found though the D.W.1 has stated that the pipe is there from 1970. The subsequent Commissioner report states that there is pipe on the disputed property. Statement of Bhoorey Singh was considered as well as D.W.1 is not able to say before the Court regarding the death of Kalu. Further the appellate Court has recorded a finding that the basis of the judgment and order in Suit No. 55 of 1934 as it was not for the property in dispute and it appears that it was for a different property, therefore, no benefit can be granted to the Defendants. After recording such finding the lower appellate Court has dismissed the appeal.

I have considered the submissions of the parties and perused the record. From the perusal of the judgment of the Courts below it is clear that the Defendants were not able to establish their claim and possession on the basis of any relevant record. The basis of the judgment of the earlier suit of 1934, as it does not tally with the property which is in dispute in the present case, no benefit can be given to the Appellants. Further Defendant-Appellants have not filed any documentary evidence to show that they have inherited the said property from their ancestors. There is a contradiction in the statements of D.Ws., therefore, in my opinion, the judgment passed by the Court below as it is a judgment of affirmance of the trial Court judgment, the lower appellate Court has not found any error in confirming the finding recorded by the trial Court.

As no substantial question of law is involved in this second appeal, this second appeal is hereby dismissed.

No order is passed as to costs.