Sher Singh vs Mullu

Rohit Arya, J.—This appeal by appellants/LRs. of plaintiff-Prithvi Singh is directed against the judgment and decree dated 12/3/2004 in Civil Appeal No. 7-A/2001 confirming the judgment and decree dated 28/6/1996 in Civil Suit No. 128-A/1991. Plaintiff''s suit for declaration and permanent injunction has been dismissed.

Facts necessary for disposal of this appeal are in narrow compass. Plaintiff by way of plaint has inter alia contended that over the suit land admeasuring 1.60 hectare falling in Khasra No. 58 situated in village Agora possession of Durag Singh, father of plaintiff-Prithvi Singh, has been continuous, uninterrupted and peaceful for last 60 years to the knowledge of the defendants. Partition amongst father of plaintiff and his brothers have also been effected 27 years ago and the suit land has fallen in the share of plaintiff as his ancestral property, however, due to inadvertence name of defendants has been recorded in the revenue record. Another plea has also been taken that plaintiff has acquired title by adverse possession by virtue of being in continuous, uninterrupted and peaceful possession over the suit land.

It is denied that Lakhua has executed a Will dated 9/9/1991 in favour of defendants No. 3 and 4. With the aforesaid pleadings instant suit was filed for declaration and permanent injunction.

Defendants filed written statement and denied plaint allegations inter alia contending that the suit property is not an ancestral property of plaintiff. Plaintiff has never been in possession over the suit land and, therefore, he has not acquired title over the suit land by adverse possession, as claimed. In fact the suit land is of Lakhua, who has one daughter and after her death, he has bequeathed his all movable and immovable properties by a Will dated 9/9/1991 in favour of defendants No. 3 and 4 and on their behalf, their father and grandfather are cultivating the land. With the aforesaid pleadings, suit was prayed to be dismissed.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. Upon critical evaluation of evidence on record with due advertence to the pleadings of the parties, trial court dismissed the suit. On appeal, first appellate court has re-appreciated the entire evidence brought on record. It has been found that plaintiff failed to establish source of acquisition of suit property by his father Durag Singh. Besides, upon perusal of the revenue record i.e. Khasra Panchshala Ex. P/3 to P/10, it has been found that for the period since Samvat 2020 to 2048 in Khasra No. 58 admeasuring 1.60 hectare name of Lakhua S/o Kanai is recorded as Bhoomiswami doing cultivating thereon and beneath thereto name of Durag Singh is mentioned, but the fact that he was doing cultivation over the suit land is not mentioned. The first appellate court has also discussed the evidence of PW-1, Prithvi Singh, to the effect that he has admitted that his father was the Patel of the village and had cordial relations with the local Patwai. There is no explanation offered as regards entry as aforesaid that as to how and why the name of plaintiff''s father is mentioned beneath the name of Lakhu S/o Kanai in the revenue records and, therefore, conclusion is drawn that by exercising his influence over the local Patwari, father of plaintiff got his name mentioned in the Khasra Panchshala in respect of the suit land. The first appellate court has also discussed the evidence of Raghuveer, PW-2, and found that the evidence so led suffers from inherent contradictions and inconsistencies with the evidence of other witnesses, as discussed in para 16 and 17 of the judgment. That apart, the first appellate court has also found that on the one hand plaintiff/appellants claimed the suit property to be their ancestral property and on the other hand have claimed to have perfected title by adverse possession. Both mutually contradictory pleadings by itself show falsity of claim of plaintiff/appellants as regards the suit land. No documentary evidence is brought on record either to establish the title by virtue of suit property being the ancestral property or to be in possession thereof for long period of more than 60 years, as stated in the plaint. With the aforesaid findings, the first appellate court concurred with the findings of the trial court. The first appellate court has also discussed in paras 21, 22, 23 and 24 of the judgment as regards title of Lakhua, S/o Kanai. The fact of execution of Will dated 9/9/1991 is also discussed in the aforesaid paras to justify bequeathing the suit property in favour of defendants No. 3 and 4 by Lakhua. In view of the aforesaid findings, first appellate court dismissed the appeal confirming the judgment and decree passed by the trial court.

Having perused the judgments impugned on record and the submissions advanced, this Court is of the view that in fact and in effect entire gamut of the matter is in the realm of facts. Both the courts below have concurrently recorded the findings to the effect that the claim of plaintiff/appellants as regards suit property being their ancestral property and further claim of being in possession of the suit land for last 60 years is not established by the evidence led and, therefore, assertion of plaintiff/appellants as regards suit property being ancestral property and of perfection of title by adverse possession has been negated. Findings so recorded, in the opinion of this Court, are impregnable in nature. No question of law much less substantial question of law arises in this appeal warranting interference u/s 100 of CPC. Appeal sans merits is hereby dismissed.