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2005 DIGILAW 535 (PNJ)

Partap Raj Singh v. Raghunath Singh @ Rugandas

2005-04-27

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. Challenge in this appeal is to the judgments and decrees passed by both the Courts below by which the suit for permanent injunction filed by the appellant has been dismissed and the plaintiff has not been held to be owner of Khasra No. 144/25/1/1 and co-sharer in Khasra No. 144/26. 2. The plaintiff claimed himself to be the owner in possession of the suit land falling in Khasra No. 144/25/1(2-19) and co-sharer in Khasra No. 144/26(0-11) on the basis of a gift deed jointly executed by his father Giriraj Singh and uncle Krishan Kumar in the year 1971. On the basis of this the plaintiff filed the present suit for declaration and seeking permanent injunction against the defendants or in the alternative, he sought himself to be declared having become owner and co-sharer of the suit land by way of prescription and adverse possession for the last more than 12 years. The defendants contested the claim of the plaintiff by contending that the predecessors-in-interest of the plaintiff, namely, Giriraj Singh and Krishan Kumar, were neither the owners nor co-sharers of the suit land. Thus, it was contended that the gift-deed executed by them was not legally valid and also not binding upon them. After hearing the counsel for the parties and on examining the evidence adduced on record, the Sub-Judge 1st Class, Palwal, dismissed the suit filed by the appellant by holding that he was neither proved to be the owner in possession of the suit land falling in Khasra No. 144/25/1/2(2-19) nor co-sharer in Khasra No. 144/26(0-11)., The appeal filed by the plaintiff was also dismissed by the Additional District Judge, Faridabad vide judgment and decree dated 18.2.1987. Now the plaintiff has filed the present appeal to challenge the judgments and decrees passed by both the Courts below. 3. I have heard the learned counsel for the parties and gone through the evidence adduced on record with their assistance. 4. The only question that arises for consideration by this Court is to the following effect: - "Whether or not the appellant has been able to prove his ownership with possession of the suit land falling in Khasra No. 144/25/1 and 144/26 either on the basis of the gift-deed executed by his predecessors-in-interest, namely, Giriraj Singh (father) and Krishan Kumar (uncle) or by way of prescription or adverse possession?" 5. The appellant has not adduced on record any documentary evidence to show that his predecessors-in-interest, namely, Giriraj Singh and Krishan Kumar, were ever recorded as co-owners and co-sharers in Patti Khail on Khasra No. 144/25/1/1 and 144/26 in the year 1971. In order to prove his possession over Khasra No. 144/26 as a co-sharer the appellant has produced on record Jamabandi (Ex.P6/1) pertaining to the year 1976-77. In the column of ownership it is recorded Shamlat Patti Khail Hasab Rasad Kabaza Zamin and in the column of ownership it is recorded Shamlat Patti Khail Hasab Rasad Kabza Zamin and in the column of cultivation Makbuza Malkan has been written. In order to prove himself to be co-sharers of Patti Khail on record. He has also not examined the Patwari Halqa in order to prove his case. Though the plaintiff adduced on record a copy of the mutation (Ex.P6/15) in order to show himself to be a co-sharer in Khasra No. 144/26, but this document is not helpful to the plaintiff as a mutation does not create a title. No oral or documentary evidence has been create a title. No oral or documentary evidence has been adduced on record by the appellant-plaintiff in order to prove his adverse possession. No witness in support of his case has been examined by the appellant. Even the Local Commissioners appointed by the trial Court have also not admitted the stand of the appellant regarding his adverse possession on the suit land. 6. On other hand, the defendants adduced sufficient documentary evidence in order to prove their ownership and possession of the suit land in the shape of documents Exhibits D-1 to D-4. The defendants took up the plea that the suit land had been purchased by them from its previous owners and co-sharers, i.e., Vijay Kumari and Vijay Partap Singh. Apart from the documentary evidence, the defendants also examined D.W.2 Amar Chand, D.W.3 Balbir Singh, D.W.4 Shiv Dutt Patwari in order to prove their ownership and possession over the suit property. 7. Apart from the above, both the Courts below have given concurrent findings of fact. No substantial question of law arises for determination by this Court in the present appeal. It being a concurrent finding of fact, cannot be interfered in the second appeal. Consequently, there is no merit in this appeal. It is accordingly, dismissed. 7. Apart from the above, both the Courts below have given concurrent findings of fact. No substantial question of law arises for determination by this Court in the present appeal. It being a concurrent finding of fact, cannot be interfered in the second appeal. Consequently, there is no merit in this appeal. It is accordingly, dismissed. There shall, however, be no order as to costs.