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2003 DIGILAW 1264 (PNJ)

Santa (Dead) Through Lrs. v. Partapa

2003-09-10

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. Santa (now deceased, through his L.Rs. ), who was the unsuccessful plaintiff, has filed the instant Regular second Appeal against the judgment and decree passed by both the Courts below vide which the suit filed by him for permanent as well as mandatory injunction regarding the suit property, was dismissed. However, a decree was passed in his favour for joint possession of the suit land. 2. In his suit, the plaintiff pleaded that he was in exclusive possession of the suit land measuring 1 kanals 16 marlas comprising in Khasra 5//21/1 situated in village Mubarkpur. He pleaded that he was in exclusive possession of the suit land 18 years prior to the filing of the suit and he was using this land for storing his manure, tethering cattle and also for cultivation. It was also pleaded that the suit land was owned by the Gram Panchayat. It was further pleaded that the defendants tried to make encroachment upon this land and the matter was repoOCed to the police but despite that on 28.1.1980 the defendants forcibly built a kotha on the land in dispute without any right or title thereto. Hence the suit was instituted by the plaintiff on 5,2.1980. 3. The aforesaid suit was contested by defendant 7 Nos. 6,9,10 and 17 only and the rest of the defendants were proceeded against ex-parte. It was pleaded that the plaintiff never remained in exclusive possession of the site. The suit land was possessed jointly by both the parties and they were also using the site for storing their manure, It was further pleaded that the plaintiff never cultivated the suit land and actually he got the entries of Khasra girdawari entered in his name incorrectly in connivance with the revenue Patwari. 4. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is exclusive owner in possession of Plot No. 5//21/1? OPP 2. Whether the defendants have constructed a kotha on this plot by making encroachment thereon? OPP 3. Whether the plaintiff is entitled to the injunction prayed for? OPP 4. Whether the suit in the present from is not maintainable? OPD 5. Whether the suit is not properly instituted? OPD 6. Whether the suit is within time? OPD 7. Relief. 5. Whether the defendants have constructed a kotha on this plot by making encroachment thereon? OPP 3. Whether the plaintiff is entitled to the injunction prayed for? OPP 4. Whether the suit in the present from is not maintainable? OPD 5. Whether the suit is not properly instituted? OPD 6. Whether the suit is within time? OPD 7. Relief. 5. After considering the evidence led by both the parties, the learned trial Court held that at the time of institution of the suit, the plaintiff was never found to be in possession of the disputed land. It was further held that the stand of the plaintiff that he got possession of the suit land 18 years prior to the institution of the suit, was found to be false. It was found from the entries of the jamabandi for the year 1963-64 (Ex.D2) and of 1969-70 (Ex.D3) that the defendant as well as plaintiff were in joint possession of the disputed land. However, only in kharif 1976, the plaintiff was recorded in possession of the suit land and on the basis of that entry, he could not be said to have been in exclusive possession of the suit land. On the basis of the foresaid finding, the learned trial Court dismissed the claim of the plaintiff for permanent and mandatory injunction against the defendants. However, the learned trial Court granted a decree of joint possession in favour of the plaintiff and against the defendants to the extent of his share mentioned in the jamabandi for the year 1974-75 (Ex.P2). 6. Against the aforesaid judgment and decree, the plaintiff filed an appeal. The learned first Appellate Court after affirming the finding of the learned trial Court dismissed the appeal. It was found that the plaintiff was not in possession of the suit land at the time of institution of the suit. It was also held that he was not in exclusive possession of the land in dispute at all. 7. Feeling dissatisfied against the judgment and decree passed by both the Court below, the plaintiff has filed the instant Regular Second Appeal. 8. The learned counsel for the appellant argued that the findings recorded by the Courts below are wrong and are based upon misreading and misconstruing of the oral as well as documentary evidence available on the record. 7. Feeling dissatisfied against the judgment and decree passed by both the Court below, the plaintiff has filed the instant Regular Second Appeal. 8. The learned counsel for the appellant argued that the findings recorded by the Courts below are wrong and are based upon misreading and misconstruing of the oral as well as documentary evidence available on the record. Both the Courts below have completely erred in law in ignoring the jamabandi and khasra girdwaries available on the record showing the plaintiff to be in exclusive possession of the land in dispute and merely because the defendants having encroached upon a part of it without any right whatsoever, the plaintiff could not be denied the relief of injunction both permanent and mandatory on that score alone. 9. On the other hand, learned counsel for the contesting respondents submitted that a pure finding of fact has been recorded by both the Courts below and no substantial question of law is involved in the present appeal nor any such question has been formulated by the learned counsel for the appellant. Therefore, the appeal is liable to be dismissed. 10. After hearing learned counsel for the parties and perusing the record of the case, I do not find any merit in the instant appeal. Both the Courts below have recorded a pure finding of facts. The plaintiff-appellant has failed to prove his exclusive possession on the land in dispute. A finding has been recorded by both the Courts below that the plaintiff was not the owner of the land in dispute, only he was found in joint possession of the disputed land and for that, a decree of joint possession was passed in his favour. The findings recorded by the Courts below are pure findings of facts. No substantial question of law is involved in this appeal. The learned counsel for the appellant neither canvassed any substantial question of law nor formulated any such question. The concurrent finding of fact recorded by both the Courts below cannot be interfered in the Regular second Appeal. In view of the aforesaid, I do not find any merit in this appeal and the same is hereby dismissed with no order as to costs.