Shambhu Singh @APPELLANT@Hash Chandra Nath

This second appeal is directed against judgment dated 28.11.2016 passed by Additional District Judge, Rajsamand, whereby, the appeal filed by the

appellant as well as the crossappeal filed by the plaintiffs have been rejected against judgment and decree dated 23.11.2009 passed by Civil Judge

(Junior Division), Devgarh, District Rajsamand.

Suit for permanent injunction was filed by Chandra Nath & Mohan Nath against six defendants including appellant, inter alia, with the averments that

a land situated at Devgarh, Rajsamand was of their possession, purchased by a registered sale deed from one Mandhata Singh on 30.10.1972 and

since then they are in possession of the land in question. It was submitted that defendants, who were owners of plots next to the plaintiffs’ plot

were seeking to trespass on the plot in question and, therefore, they be restrained by way of permanent injunction.

Written statement was filed by Shambhu Singh and Smt. Krishna Kanwar, inter alia, with the averments that Mandhata Singh had no title to the suit

property and that a Patta dated 12.02.2002 was issued by the Municipality in favour of Smt. Krishna Kanwar and, therefore, the suit was liable to be

dismissed.

Based on the averments of the parties, the trial court framed five issues. On behalf of plaintiffs six witnesses were examined and six documents

were exhibited. On behalf of the defendants 12 witnesses were examined and six documents were exhibited.

After hearing the parties, the trial court decided the issues pertaining to the purchase and possession vide sale deed dated 30.10.1972 and the

permission to raise construction granted by Municipal Board, Devgarh in favour of the plaintiffs. Thereafter the case of the defendants based on the

Patta dated 06.02.2002 was examined and the trial court came to the conclusion that once the construction permission was given by the Municipal

Board in the year 1973, the Patta could not have been issued by the Municipal Board in 2002 and that the same was ineffective in so far as the

plaintiffs were concerned and, consequently, decreed the suit granting permanent injunction as sought.

Feeling aggrieved, the appellants Jai Singh, Shambhu Singh, Dunger Singh & Smt. Krishna Kanwar filed first appeal.

The plaintiffs also filed cross appeal qua a part of the finding.

The First Appellate Court after hearing the parties upheld the findings of the trial court on all the issues and, consequently, dismissed the appeal and

the cross-appeal.

The present appeal has been filed by Shambhu Singh alone questioning validity of the decree passed by the trial court as upheld by the First Appellate

Court.

It is submitted by learned counsel for the appellant that both the courts below fell in error in coming to the conclusion that the land in question was

owned by the plaintiffs, inasmuch as, the transferor of land - Mandhata Singh himself appeared in the witness box and stated that he had no right to

transfer the property. Further submissions have been made that once the Patta has been issued by the Municipal Board in favour of Smt. Krishna

Kanwar there was no question of the plaintiffs being in possession of the land in question and, therefore, the findings in this regard deserves to be

quashed and the suit is liable to be dismissed.

I have considered the submissions made by learned counsel for the appellant and have perused the material available on record.

Both the courts have concurrently found that the land in question was transferred by Mandhata Singh by way of registered sale deed dated 30.10.1972

and that the Municipal Board had granted permission for raising construction in the year 1973, which documents were sufficient to establish the

possession of the plaintiffs since 1972/1973 and that the Municipal Board had no occasion to issue the Patta after 30 years in the year 2002 in favour

of defendant No. 4 â€" Smt. Krishna Kanwar based on the claim that the property was ancestral and was in possession of her in-laws and,

consequently, decreed the suit/dismissed the appeal. Learned counsel for the appellant failed to point out any perversity in the findings recorded by the

two courts below.

So far as the statement of Mandhata Singh is concerned, the same being contrary to the contents of a registered document is of no consequence.

Besides the above, it would be seen that defendant No. 5 â€" Smt. Krishna Kanwar had filed the written statement and in written statement filed by

Shambhu Singh Patta was claimed in favour of Smt. Krishna Kanwar.Â

Against the decree passed by the trial court the appeal was filed by Jai Singh, Shambhu Singh & Smt. Krishna Kanwar and after dismissal of the said

appeal, the present second appeal has been filed only by Shambhu Singh.Â

The very fact that Smt. Krishna Kanwar â€" the Patta holder who had filed her written statement in the suit, chose not to file the appeal against the

appellate decree, the appeal, even otherwise, at the instance of Shambhu Singh, who does not have title to the suit property would be incompetent.

Irrespective of the above technical deficiency, in so far as the present appeal is concerned, as already observed, the concurrent findings of fact

recorded by the courts below do not call for any interference. There is no substance in the appeal and the same is, therefore, dismissed.