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2005 DIGILAW 402 (HP)

POHLO RAM v. JINDU RAM

2005-10-28

V.M.JAIN

body2005
JUDGEMENT V. M. Jain, J.: This Regular Second Appeal has been filed by plaintiff appellant Pohlu Ram against the judgment and decree dated 7.6.2005, passed by the Additional District Judge, Ghumarwin, vide which the appeal filed by one for the defendants, namely, Jindu Ram was allowed, the judgment and decree passed by the trial Court were set aside and the suit of the plaintiff-was dismissed. 2. Pohlu Ram plaintiff had filed a suit for permanent injunction and fort, possession against the defendants with the allegations that the parties were co-sharers in joint possession of the land measuring 17 biswas and that partition order had been passed by the Assistant Collector 1st Grade but the partition proceedings were yet to be completed. It was alleged that even though the plaintiff had 1/3"1 share in the suit land, the defendants by taking undue advantage of the revenue entries had threatened to dispossess the plaintiff from the suit land. It was alleged that defendant No.2 had forcibly constructed house/shops over the suit land measuring 11 bighas and had thereby dispossessed the plaintiff from his 1/3rd share. 3. In the written statement filed by the defendant No.2, various preliminary objections were taken. It was alleged that at the instance of the plaintiff partition proceedings were initiated in the Court of Assistant Collector 1st Grade but the same pertained to different land measuring 9-9 bighas. It was further alleged that in those partition proceedings the defendants had taken up the objection had private partition had already been effected between the parties about 15 years back and since then each share-holder was in possession of his share at the spot. It was further alleged that the two khasra numbers which are the subject matter of the present litigation were in his (defendants) possession and that the possession of the parties was not to be disturbed in the partition proceedings. It was further alleged that demarcation was conducted at the spot and those two khasra numbers were found to be in possession of the defendants. It was alleged that the partition was effected keeping in view the possession and the possession was not disturbed. It was alleged that the Assistant Collector 1st Grade vide order dated 4.6.1992 while determining the mode of partition had ordered that the possession should not be disturbed. It was alleged that the partition was effected keeping in view the possession and the possession was not disturbed. It was alleged that the Assistant Collector 1st Grade vide order dated 4.6.1992 while determining the mode of partition had ordered that the possession should not be disturbed. It was alleged that the defendant was in possession of the disputed khasra numbers for the last 25 years and his possession had been confirmed by the Kanoongo vide his report dated 21.6.1990. It was denied that the plaintiff was in possession of any part of these khasra numbers or that he had 1/3rd share therein. It was alleged that the defendant was in possession of the suit land and had constructed a house thereon before the filing of the suit. It was further alleged that the objection regarding partition proceedings could not be taken before the Civil Court. 4. Defendant No.2 also filed counter-claim to the effect that he was entitled for declaration to the effect that the order dated 4.6.1992 passed by the Assistant Collector 1st Grade regarding land measuring 9-9 bighas was final and binding on the parties. 5. The plaintiff filed replication to the written statement and also filed reply to the counter-claim filed by defendant No.2. On the pleadings of the parties various issues were framed. Both sides led evidence in support of their respective contentions. 6. After hearing both sides and perusing the record, the learned trial Court partly decreed the suit of the plaintiff and restrained defendant No.2 from interfering in the possession of the plaintiff over the suit till the finalization of the partition proceedings. It was further made clear that the plaintiff shall not raise any construction over the suit land till the finalization of the partition proceedings. The relief claimed by defendant No. 2 by way of counter-claim was declined while deciding issue No.2, which was to the effect as to whether the defendant was entitled for declaration by way of counter-claim. 7. Aggrieved against the judgment and decree dated 25.8.1999 passed by the learned trial Court, Jindu Ram, defendant No.2 filed appeal. The learned Additional District Judge, after hearing both the sides and perusing the record, allowed and the said appeal of Jindu Ram defendant No.2 set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff. The learned Additional District Judge, after hearing both the sides and perusing the record, allowed and the said appeal of Jindu Ram defendant No.2 set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff. Aggrieved against the same, Pohlu Ram plaintiff filed the present Regular Second Appeal in this Court. 8.1 have heard the learned counsel and have also gone through the record. 9. The learned counsel appearing for the plaintiff-appellant at the outset submitted before me that the appeal filed by Jindu Ram, defendant, before the lower Appellate Court was not maintainable and was liable to be dismissed on the short ground that by way of judgment and decree dated 25.8.1999 the learned trial Court had partly decreed the suit of the plaintiff and had dismissed the counter-claim filed by Jindu Ram defendant No.2. It was further submitted that against the said judgment and decree dated 25.8.1999, defendant No.2 Jindu Ram had filed only one appeal, even though he was required to file two appeals, one in respect of the suit of the plaintiff having been partly decreed and the other against the dismissal of the counter-claim filed by defendant No.2. Reliance in this regard has been placed on the law laid down by the Honble Supreme Court in the case Premier Tyres Limited versus Kerala State Road Transport Corporation 1933 Supp. (2) Supreme Court Cases 146. Reliance has also been placed on the law laid down by a Single Bench judgment of Madras High Court in the case Vediammal and others versus M. Kandasamy and other ILR (1997) 1 Madras 1965. 10. However, I find no force in the aforesaid submission of the learned counsel for the plaintiff-appellant. It is no doubt true that the suit for injunction filed by the plaintiff-appellant was partly decreed by the trial Court and impliedly the counter-claim filed by defendant No.2 seeking a decree for declaration was dismissed by the learned trial Court. It is also clear from the record that against the judgment and decree of the trial Court dated 25.8.1999, vide which the suit of the! plaintiff was partly decreed and counter-claim of the defendant No.2 was dismissed, defendant No.2 had filed only one appeal before the lower Appellate Court. It is also clear from the record that against the judgment and decree of the trial Court dated 25.8.1999, vide which the suit of the! plaintiff was partly decreed and counter-claim of the defendant No.2 was dismissed, defendant No.2 had filed only one appeal before the lower Appellate Court. However, on the facts and circumstances of the present case, in my opinion, non-filing of two appeals would be of no consequence, since the lower Appellate Courts had accepted the appeal of defendant No.2 only in respect of decree passed by the trial Court, vide which the suit of the plaintiff had been partly decreed. So for as the dismissal of the counter-claim filed by defendant No.2 is concerned, the Appellate Court had not granted any relief to defendant No.2 and, as such, the dismissal of the counter claim of defendant No.2 had not been set aside by the learned Additional District Judge while deciding the appeal filed by defendant No.2. In this view of the matter, in my opinion, it cannot be said that the appeal filed by defendant No.2 against the judgment and decree dated 25.8.1999 vide which the suit of the plaintiff was partly decreed, was not maintainable merely because defendant No.2 had not filed a separate appeal challenging the dismissal of his counter-claim, vide the aforesaid judgment and decree, dated 25.8.1999. Even if defendant No.2 while filing the appeal had challenged the findings of the trial Court not only with regard to the suit of the plaintiff having been partly decreed but also with the regard to the dismissal of his counter-claim, in my opinion, the same would be no consequence since nothing has come in the record to show that during arguments the learned counsel appearing for defendant No.2 before the lower Appellate Court had also sought any relief against the dismissal of the counter-claim filed by defendant No.2 could be treated as the appeal only against the judgment and decree of the trial Court, vide which the suit of the plaintiff had been partly decreed. This is especially so when the learned Additional District Judge while accepting the appeal filed by defendant No.2 and setting aside the judgment and decree of the trial Court had simply dismissed the suit of the plaintiff and no relief had been granted to defendant No.2 in respect of his counter-claim. This is especially so when the learned Additional District Judge while accepting the appeal filed by defendant No.2 and setting aside the judgment and decree of the trial Court had simply dismissed the suit of the plaintiff and no relief had been granted to defendant No.2 in respect of his counter-claim. The question of filing two appeals would arise only if the defendant was also pressing his counter-claim, which was dismissed by the learned trial Court and the question regarding the counter-claim could be considered only if defendant No.2 had filed two appeals, one against the suit of the plaintiff having been partly decreed and the other against the dismissal of the counter-claim. However, in case defendant No.2 is not seeking relief before the lower Appellate Court in respect of the counter-claim, in my opinion, it would not be necessary for him to file two separate appeals against the judgment and decree of the trial Court. 11. The two authorities relied upon by the learned counsel for the plaintiff-appellant, in my opinion, would have no relevance to the facts and circumstances of the present case. In 1993 Supp (2) Supreme Court cases 146 (supra), the plaintiff had filed a suit for recovery of certain amounts against the defendant whereas the defendant had also filed a suit for recovery of the excess amount paid to the plaintiff. The suit of the plaintiff was partly decreed whereas the suit of the defendant was also decreed in part. The plaintiff filed only one appeal challenging the decree in favour of the defendant and did not file any appeal regarding dismissal of the suit for a party of its claim. The trial Court dismissed the appeal of the as barred by res judicata since the finding recorded in the other suit had become final. On the facts and circumstances of the said case, it was held by the Honble Supreme Court that finality of the finding recorded in the connected suit due to non-filing of the appeal precluded the Court from proceeding with the proceedings in the other suit. However, in my opinion, the law laid down in the said authority would have no application to the present case. However, in my opinion, the law laid down in the said authority would have no application to the present case. In the present case, even if the relief claimed by defendant No.2 by way of counter-claim seeking a declaration had been declined by the trial Court and no separate appeal was filed by defendant No.2 challenging the finding of the trial court in this regard, in my opinion, the same would be of no consequence, since it could not be said, on the facts of the present case, that the finding recorded in this regard precluded the Court from proceeding with the appeal the finding of the trial Court in the main suit. As referred to above, the claim of the plaintiff was for injunction whereas the counter-claim of defendant No.2 was for declaration. Even if the claim of defendant No.2 for declaration is not granted in his favour, still the Court is competent to consider the question regarding injunction. Similarly, the law laid down by Madras High Court in ILR (1997) I Madras 1695 (supra) would have no application to the facts of the present case and the plaintiff appellant cannot take any benefit from the same. 12. In view of the detailed discussion above, I repel the contention of the learned counsel for the plaintiff-appellant regarding non-maintainability of the appeal before the lower Appellate Court. 13. It was then submitted before me by the learned counsel for the plaintiff-appellant that the learned Additional District Judge had erred in law in dismissing the suit of the plaintiff-appellant and setting aside the judgment and decree of the trial Court whereby defendant No.2 was restrained from interfering in the possession of the plaintiff over the suit land measuring 6 biswas. However, I find no force in this submission as well of the learned counsel for the plaintiff-appellant. After considering the entire evidence available on the record, it was found by the learned Additional District Judge that in view of the evidence available on record it was manifest that joint land of the parties was partitioned in a family partition about 30-35 years back and since then the co-sharers were coming in exclusive possession of their respective shares. It was further found that so far as the suit land is concerned, the same was coming in exclusive possession of Jindu Ram defendant since the time of the aforesaid private partition. It was further found that so far as the suit land is concerned, the same was coming in exclusive possession of Jindu Ram defendant since the time of the aforesaid private partition. In my opinion, these findings given by the learned Additional District Judge are findings of fact based on evidence led by the parties and do not call for any interference from this Court in the present Regular Second Appeal especially when there is nothing on the record to show that there was any misreading of evidence or that any material piece of evidence was ignored by the learned Additional District Judge while giving these findings. So far as the tatima Ex. PW-3/A and testimony of PW-3 Hardayal Singh Patwari are concerned, the learned Additional District Judge had considered the testimony of PW-3 Hardayal Singh Patwari and the tatima Ex.PW-3/A prepared by him and after considering the same it was found by the learned Additional District Judge that the said tatime Ex.PW-3/A prepared by PW-3 Hardayal Singh Patwari was without any basis and against the revenue record and, as such, the said tatima would not prove the case of the plaintiff. While coming to this conclusion, it was found by the learned Additional District Judge that there was ample evidence on the record to show that the suit land was coming in possession of Jindu Ram defendant since the time of private partition, which had taken place about 30 years back. Once the learned S Additional District Judge had discarded the tatima Ex. PW-3/A prepared by PW-3 Hardayal Singh Patwari and had given cogent reasons for the same, in my opinion, no case is made out for interfering with the aforesaid finding given by the learned Additional District Judge, especially, when the said findings are perfectly legal and valid. Furthermore, no question of law muchless a substantial question of law arises for determination in this appeal. 14. In view of the above, finding no merit in this appeal, the same is hereby dismissed CMP No. 965/2005. 15. In view of the dismissal of the appeal, this application has become infructuous.