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2001 DIGILAW 8 (JHR)

Kameshwar Pandey v. Rajdeo Pandey

2001-01-09

GURUSHARAN SHARMA

body2001
JUDGMENT Gurusharan Sharma, J. 1. Plaintiffs tiled Title Suit No. 102 of 1965 for declaration that suit lands measuring total 3.42 acres of Plot No- 287 in village Banki Khurd and Plots 771 and 772 in village Banki Kalan, described in schedule to the plaint, was their raiyati land. Their case was based on Raiyati settlement. 2. Two sets of written statements were tiled in the suit, one on behalf of defendants 6 to 13, supporting the claim of plaintiffs and another by contesting defendants 14 to 22. who denied settlement of suit lands with plaintiffs and asserted that in fact 4 Bighas 15-1/2 kathas land, bearing plot No. 1261 in village Banki Kalan was settled with them in the year 1944-45. 3. Trial Court decreed the suit on 31.7.1971. holding that plaintiffs established their subsisting right, title and interest over the suit land and were also in possession thereof. 4. Contesting defendants 14 to 22 filed Title Appeal No. 22 of 1971, which v/as allowed by impugned judgment and decree dated 17.1.1983. Trial Courts decree was set aside and the suit was dismissed. It was held that plaintiffs hopelessly failed to establish that there was any raiyat settlement of the suit lands in their favour, as claimed. They had no right, title and possession over the same. Plaintiffs therefore, have preferred the present Second Appeal. 5. At the time of admission of the appeal on 28.9.1983, following substantial question of law was framed. "Whether in view of the fact that the lower appellate Court has misread Exhibit 1 series, it could have disbelieved the case of settlement and whether the delay in filing these rent receipts could have been a ground for disbelieving the same?" 6. Plaintiff No. 1 was one of the settlee, who was alive but he failed to examine himself as a witness in the suit. Hukumnama was also not produced on the ground that it was stolen away. 7. Rent Receipts, Exts. 1 to 1/d and 1(i) said to have been granted by the then landlord were brought on record. Ext. 1 was for the year 1362 Fasli and was proved by PW 5, who admitted in his evidence that neither there was any khata number nor plot number mentioned in the said receipt. 7. Rent Receipts, Exts. 1 to 1/d and 1(i) said to have been granted by the then landlord were brought on record. Ext. 1 was for the year 1362 Fasli and was proved by PW 5, who admitted in his evidence that neither there was any khata number nor plot number mentioned in the said receipt. The court of appeal below noticed that subsequently after examination of PW 5, khata No. 63 was fraudulently inserted in the said receipt. Ext. 1/a was for the year 1361 Fasli, wherein area of land was not mentioned. Ext. 1/b was for the year 1349 Fasli, corresponding to the year 1942, whereas the settlement was claimed by plaintiff to have been taken in the year 1944-45. Both receipts were said to have been granted by Ram Prasad Pandey, defendant No. 10, who was examined as PW 3, but he did not prove those receipts. Ext. 1/c for the year 1355 Fasli included arrears for 1353 and 1354 Fasli was granted by Madan Mohan Prasad, who was lunatic "and his full brothers, who were defendants 1/2 and 4 in the suit did not turn up to prove the said receipt. Ext. 1 (d) was for the year 1356 Fasli. Area of land was also not mentioned therein. Ext. 1(i) was also for the year 1356 Fasli. No competent person came to prove those receipts. On close scrutiny and on the basis of materials available on record trial Court rightly held that those Rent Receipts were forged and fabricated. 8. Plaintiffs claimed that a Jamabandi in Register II, the tenants ledger, maintained by State and Rent Receipts, Exts. 1(e) to (h) and (j) were issued to them by State for the suit lands. Neither any effort was made to call for the said Jamabandi nor its certified copy was produced by plaintiffs. Only area (3.42 acres) was mentioned in those receipts but neither plot number nor khata number of the land for which they were granted was mentioned therein. Another circumstance to disbelieve those rent receipts was that they were brought on record at a belated stage in the suit, i.e., after five years, without any explanation for late filing. 9. On the other hand, certified copy of demand Register of the year 1955-56 (extract from Register II) was brought on record and was marked Ext. Another circumstance to disbelieve those rent receipts was that they were brought on record at a belated stage in the suit, i.e., after five years, without any explanation for late filing. 9. On the other hand, certified copy of demand Register of the year 1955-56 (extract from Register II) was brought on record and was marked Ext. G on behalf of contesting defendants, which was in plaintiffs name in respect of lands of (khata No. 17. Though in order to meet the situation it was argued on behalf of plaintiffs that khata No. 17, was wrongly mentioned therein, but ho step was ever taken for its correction. In Ext. G., total area of khata No. 17 lands of village Banki Kalan was 3.42 acre, i.e., approximately about 4 bighas 16 khatas, which tallied with contesting defendants assertion "of settlement in favour of plaintiffs. 10. In respect of Ext. G, plaintiffs contention was that in fact, the said Jamabandi was in respect of the suit land and khata No. 17 was wrongly mentioned therein. Court of appeal below found that said Jambandi related to the land, which, according to defendants, was settled with the plaintiff and not the suit land. This is a question of fact and this Court has no jurisdiction to set aside in Second Appeal. The finding was recorded on that question by the Court of appeal below, which is final court of fan can not set aside. 11. There was no reliable evidence on the point of alleged settlement in 1934 as well as alleged theft of all the papers relating to said settlement, including Hukumnama as also on the point of physical possession over the suit land brought on record on behalf of plaintiff. 12. There was no substance in plaintiffs assertion that there was over- writing in the khata number mentioned in Ext. G. Plaintiffs also miserably failed to prove their physical possession over the suit land. 13. In the present case, first appellate Court has exercised its discretion in a judicial manner and as such the same can not be regarded an suffering from an error either of law or procedure requiring interference in Second Appeal. Simply because trial Court had decided differently is not a question of law justifying interference in the impugned judgment, passed by court of appeal below in the present Second Appeal. 14. Simply because trial Court had decided differently is not a question of law justifying interference in the impugned judgment, passed by court of appeal below in the present Second Appeal. 14. There is no merit in this Second Appeal. It is, accordingly, dismissed, but without costs. 15. Appeal dismissed.