JUDGMENT Surinder Sarup, J.- This appeal is directed against the judgment and decree of the Court of Sh Surjit Singh District Judge, Mandi, Kullu and Lauhal Spiti Districts, Camp at Kullu dated 14-1-1991 whereby the suit of the plaintiff-respondent Uma Devi has been decreed to the effect that the . defendants-appellants have been restrained from interfering with the plaintiffs possession over the land measuring 4-10.0 Bigha situated in Phati Soil Kothi Barshai, Tehsil and District Kullu, which had been granted to her under the description which has been given with plan attached thereto i.e. the suit land. By the same judgment the cross objections filed by the defendant-appellants have also been dismissed. It may be mentioned here that the appellant was aggrieved against the judgment and decree m the Court of Shri J.L. Gupta, Sub Judge, 1st Class, Kullu dated 2-11-1987 dismissing the suit of the plaintiff respondent, 2 The facts giving rise to this appeal arc that the plaintiff-respondents filed the suit giving rise to this appeal for the issuance of permanent prohibitory injunction against the defendants appellants on the pleadings that the suit land fully described in the plaint, and also as per details given in the impugned judgment and decree, had been in her possession since the Year 1972 She made an application to the S.D.O. (C) Kullu for allotting the said land to her under the Nautor Rules. However, her application was dismissed by the S.D.O. (C) Kullu and then she filed an appeal before the Deputy Commissioner, Kullu and the fate of that appeal was same Then she filed a revision before the Financial Commissioner, Kullu and he vide order dated 21-5-1980 set aside the orders of the S.D.O. (C) Kullu and the Deputy Commissioner, Kullu and directed that the suit land be given to her under the Nautor Rules In consequence of the same Patta dated 26-11-1981 was issued in her favour and symbolic possession was also delivered to her because she was also in physical possession 3. The defendants-appellants in their written statement resisted the suit by alleging that vide Patte No 1778 DC dated 8-8-1974 had allotted 3-10.0 bighas of land to their predecessor Chuni Lal This was allotted ay the revenue authorities and that the said land included a portion of the suit land to the extent of 2 Bighas.
The defendants-appellants in their written statement resisted the suit by alleging that vide Patte No 1778 DC dated 8-8-1974 had allotted 3-10.0 bighas of land to their predecessor Chuni Lal This was allotted ay the revenue authorities and that the said land included a portion of the suit land to the extent of 2 Bighas. They further pleaded that they had Sin S apple trees on 3.10-0 Bighas land which had been allotted to their predecessor Chuni Lal. Ever since, possession had been given to them. They also raised certain preliminary objections which were also taken in the written statement to the effect that the suit was not within limitation and that the plaintiff has no cause of action, : that the plaintiff was not entitled to the discretionary relief of injunction and was out of possession and as such, not entitled to the relief of injunction and also she was estopped by her acts and conduct from seeking the relief. 4. On the pleadings of the parties, the trial Court framed the following issues :— "(1) Whether the plaintiff is owner in possession of the land in dispute, as alleged ? OPP. (2) Whether the defendants are interfering in the possession of the plaintiff over the land in dispute and the plaintiff is entitled to the relief of injunction as alleged ? OPP. (3) Whether the suit of the plaintiff is barred by limitation ? OPD. (4) Whether no cause of action has accrued to the plaintiff against the defendants as alleged ? OPD. (5) Whether the suit is not competent in the present from as alleged in preliminary objection No. 4 ? OPD. (6) Whether the plaintiff is precluded from fifing the suit by her act and conduct as alleged in the preliminary objection No.5 ? OPD. (7) Whether the land in dispute has been granted in nautor to the defendants on 8-8-1974 as alleged ? If so its effect ? OPD. (8) Relief” 5. Issues No.1 and 2 was answered against the plaintiff and in favour of the defendant-appellant while issues No 3 and 4 were found in her favour. However, in view of the findings on first two issues, her suit was dismissed. Hence the appeal before the District Judge. 6. In the impugned judgment, the District Judge, has considered the evidence including Patta which is Ex P-1.
However, in view of the findings on first two issues, her suit was dismissed. Hence the appeal before the District Judge. 6. In the impugned judgment, the District Judge, has considered the evidence including Patta which is Ex P-1. He has also read in evidence the map of the land allotted to the plaintiff with the Patta vide Mark A. The finding in the impugned judgment is that it is not disputed that Chuni Lal had also been granted 3.10.0 bighas land under the Nautor Rules, in the year, 1974. However, no cogent and reliable evidence has been led by the defendants-appellants to show that the part of the site that had been allotted to their predecessor of Chuni Lal falls in 4-10-0 Bighas land in respect of which the injunction has been sought by the plaintiff The onus to prove this plea was upon the defendants, as is clear from the tenor and the frame of issue No. 7. However, they have not led any concrete evidence in support of their plea, including not examining the revenue official of the department to show that a portion of the suit land to the extent of 2 Bighas land formed part of the land that was allotted to Chuni Lal predecessor of the defendants in the year 1974. Similarly, according to the learned Appellate Court, the defendants have not led any evidence in the form of revenue records to show that the land allotted to the plaintiff overlaps their nautor land to the extent of 2 bighas. He as also considered the oral evidence of the defendants Vidya Devi as DW 1, Kebu DW 2, and Jindu Ram, D.W. 3 and he has held their evidence on the two points in issue. 7. Basically the above is appreciation of evidence and is a finding of fact, therefore, no question of law much less any substantial question of law is involved in the case. The learned Counsel for the appellants, has it must be said ably argued his case and has submitted that the document mark A’ is not admissible as the documentary evidence has not been produced to prove it Since the plan cannot be read in evidence, being a Tatima the Patta also falls to the ground being not admissible.
The learned Counsel for the appellants, has it must be said ably argued his case and has submitted that the document mark A’ is not admissible as the documentary evidence has not been produced to prove it Since the plan cannot be read in evidence, being a Tatima the Patta also falls to the ground being not admissible. In support of his a guments, he has cited Damodaran v Karimba Plantations Co Ltd. and others, AIR 1959 Kerala 358 [t has been laid down thereunder while considering Sections 60 and 83 of the Evidence Act, 1872 as follows :- “Maps or plans made for the purposes of any cause must be proved to be accurate. They must be proved by the persons who made them They are post litem motam and lack the necessary trustworthiness Where maps are made for the purposes of a suit, there is, even apart from fraud, which may exist, a tendency to colour, exaggerate and favour which can only be counteracted by swearing the maker to the truth of his plan The rights of property as between two parties cannot be affected by a map drawn for a totally different purpose and a purpose totally irrelevant to the subject of the dispute between them. Trustworthiness and accuracy of such a map must be proved Otherwise requirements of section 83 are not satisfied " There can be no quarrel with the proposition of law as laid down by the Kerala High Court. However, the facts in the present case are different and the authority in this case is not applicable The reason for this is that the map A in the present case has been read in evidence by the Appellate Court. It is clear from the judgment that no objection was raised by the defendants appellants hence they are estopped by their own acts and conduct from raising this objection here. In this view of the matter, the Patta Ex P1 is very much relevant and has rightly been held by the learned Appellate Court, as also the trial Court though the findings of the latter is against the plaintiff-respondent. 8.
In this view of the matter, the Patta Ex P1 is very much relevant and has rightly been held by the learned Appellate Court, as also the trial Court though the findings of the latter is against the plaintiff-respondent. 8. In order to sum up on the first point, it is settled law that where a plea regarding admissibility of document is not taken at the time when it is read in evidence or is being produced in evidence cannot specifically be allowed to be raised at the stage of appeal etc Therefore, the first sub- mission of the learned Counsel for the appellants-defendants is untenable 9. It has next been argued by Sh Baldev Singh learned Counsel for the appellant that no cause of action has arisen to the plaintiff respondent to file the suit as she is out of possession. This argument is devoid of force inasmuch as the plaintiff-respondent has examined PW-I Uma Devi and has clearly stated that she was allowed a Nautor land 16 years ago. Thereafter, she had planted Apple trees on the same. She has further stated that Potatoes, Dal Mash Crop etc. was sown and reaped on this land. She has produced PW IA which clearly spells out the allotment of the suit land to her in pursuance of the order of the Financial Commissioner (Revenue) passed in her favour in the year 1980 At this stage, it must be mentioned that since the defendants-appellants admittedly did not avail any remedy, which might have been available to them in the shape of filing writ petition under Article 226 of the Constitution of India against the said order of the Financial Commissioner, they are bound by the same. This is an another important fact which goes against their plea and case. PW-1 plaintiff Uma Devi has been subjected to a lengthy cross-examination but stuck to her point that she is in possession. She has denied the suggestion that out of the suit land, the defendants-appellants are in possession of 2 Bighas of land This again is a factor in her favour. She has been supported in her plea by other witnesses PW2 Repu, PW-3 Krishan Chand as also PW-3 Kewal Ram. 10. As regards the evidence of the defendants although she examined her self as D.W-1, she has nowhere stated that the plaintiff is not in possession of the suit land.
She has been supported in her plea by other witnesses PW2 Repu, PW-3 Krishan Chand as also PW-3 Kewal Ram. 10. As regards the evidence of the defendants although she examined her self as D.W-1, she has nowhere stated that the plaintiff is not in possession of the suit land. Her only plea h that out of the said 4 Bighas 10 Biswas, she is in possession of 2 Bighas of land This however, she has failed to prove, even though she examined D.W. 2 Kebu Ram and D.W-3 Jindu Ram None of them has stated anything about the land of the defendants-appellants to the extent of 2 Bighas over-laping the suit land. 11. The learned Counsel for the appellant has submitted that in her statement as PW-1, the plaintiff has not specifically stated that she is in possession 12 This argument is again not acceptable on the short; ground that when she slates that she is in the possession of Nautor (and allotted to her that she has cultivated Dal Mash and Potatoes etc It means that she has been in possession and thus is entitled to the relief of injunction restraining ? he defendants-appellant? from interfering in her possession As regards cause of action, the learned lover Appellate Court has rightly held under Issue No.3 that since the plaintiff-respondent is in possession, it cannot be said that she has no cause of action. Therefore, the ruling relied on by the learned Counsel for the defendants-appellants in this behalf. Baku Mahton and others v. Most name not known widow of Anathi Thakur and others, AIR 197 Patna 146, is not applicable in the present case 12. Another important aspect of the case is that D.W.1 in her statement has mentioned that there was a compromise between the parties but it was not agreed to. This also goes against the case of the defendants-appellants 13. No further point has been urged or argued. 14. For the reasons recorded above, this appeal fails and is dismissed and the judgment and decree of the lower Appellate Court are hereby affirmed. In the circumstances of the case, there will be no order as to costs. Appeal dismissed.