Shakun Bai vs Pran Singh

Rohit Arya, J.—This appeal by the defendant No. 1 u/s 100 CPC is directed against the concurring judgment and decree dated 24/08/2006 passed in civil appeal No. 142A/2005 by II Additional District Judge (Fast Track Court), Vidisha District Vidisha affirming the judgment and decree dated 27/07/2005 passed in civil suit No. 273A/2003 by Civil Judge, Class-II, Kurwai, plaintiff''s suit for restoration of possession has been decreed.

Facts necessary for disposal of this appeal in a nutshell are that the plaintiff inter alia averred in the plaint that the suit land admeasuring 1.045 hectare jointly falling in survey Nos. 214/3/1 and 214/4/1 situated in village Madaukhedi, Tahsil Kurwai, District Vidisha (hereinafter referred to as ''the suit land'') is of his ownership and possession. The aforesaid property is part of an ancestral property which was initially apportioned in the partition effected by Tahsildar between him, his brothers, Gulab Singh, Maharaj Singh and Bundel Singh in revenue case No. 15A3/82-83 vide order dated 02/05/1983 and since then, he is in possession thereon. His brother, Maharaj Singh vide registered sale deed dated 30/04/1997 has transferred his share to the extent of 1.045 hectare falling in survey Nos. 214/3/2 and 214/4/2 in favour of defendant No. 1. However, since the aforesaid lands are adjacent to each other, defendant No. 1 taking advantage of the same has encroached upon 07 biswa of land on the northern side of the plaintiff''s land on or about 10/04/2002 and installed pillars. Despite intervention by the revenue authorities upon registration of case No. 31-A/12/01-02 and demarcation of the land by them, defendant No. 1 did not remove the encroachment and illegal possession over the suit land. That lead to filing of the suit for restoration of possession by the plaintiff.

Defendant No. 1 filed written statement and denied plaint allegations. It is inter alia contended that after mutual partition amongst the brothers, i.e., plaintiff and his brothers, Maharaj Singh has been in possession of suit land falling in survey Nos. 214/3/1 and 214/3/2 and the suit land is in fact part of survey No. 214/3/2. It is alleged that the plaintiff in collusion with his brother, Maharaj Singh has filed a collusive suit against her. On the aforesaid pleadings, it was prayed that the suit be dismissed.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. Upon critical evaluation of the evidence on record, trial Court decreed the suit. On appeal, the first appellate court has again reappreciated the oral and documentary evidence on record and concluded to the effect that in fact vide registered sale deed dated 30/04/1997, the defendant No. 1 had purchased the land admeasuring 1.045 hectare falling in survey Nos. 214/3/2 and 214/4/2 from Maharaj Singh and, therefore, possession of defendant No. 1 over the land in excess thereto, i.e., 07 biswa was found to be an encroachment, as there is no documentary evidence to establish assertion of defendant No. 1 as regards legal possession over the suit land and on the contrary, plaintiff produced khasra panchshala (exhibit P/4) wherein the suit land is recorded in the name of Pran Singh (plaintiff) duly supported by evidence of Maharaj Singh (P.W.2), Ramswaroop (P.W.3) and Narayan Singh (P.W.4).

Defendant No. 1 further contended that since the suit land has been in possession of Maharaj Singh for more than 22 years and the same has been sold to her and she continued to be in possession thereon and therefore, she acquired title by adverse possession.

First appellate Court has negated aforesaid assertion by cogent reasons as contained in paragraphs 19 and 20 of the impugned judgment. It is found that the evidence lead by defendant No. 1 suffers from inherent contradictions and has not supported by any documentary evidence. With the aforesaid findings, first appellate Court has affirmed the judgment and decree passed by the trial Court.

Having perused the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that the Courts below have recorded concurrent findings of fact based upon critical evaluation of the evidence on record and, therefore not committed any error of law or fact while decreeing the suit of plaintiff. The entire matter at issue is in realm of facts. The findings are fully justified and impregnable in nature. No question of law much less substantial question of law arises warranting interference u/s 100 of the Code.

The appeal sans merit and is dismissed.

Certified copy as per rules.