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2005 DIGILAW 839 (PNJ)

Mahabir v. Surta

2005-08-09

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that the suit of the plaintiff-appellants for permanent injunction for possession with respect to the suit land is liable to be dismissed because their claim that the suit land is comprised in khasra No. 156 as per bandobst No. 1897 has not been proved. No documentary evidence was produced connecting khasra No. 156 as per bandobast 1897 with that of 378 which is the later khasra. It was claimed to be a changed khasra number according to bandobast 1909. The view of the lower appellate Court on the issue is as under: As per the pleadings of the appellants/plaintiffs the suit land is in khasra No. 156 as per the bandobast of 1879 and marked as ABCD in the site plan. But when he came in the witness box PW1 he has stated that the suit land is in khasra No. 156. In cross-examination he has admitted that as per Bandobast of the year 1879 its number was 156 and today also its number is also 156. While in the replication, which is part of the pleadings, in para No. 2, it is mentioned that in the year 1879 its khasra number was 156 and in the Bandobast of 1989 its number became 378. So, the evidence led by the appellants-plaintiffs is contradictory to the pleadings and also it has not been linked with that in the year 1879 it was khasra No. 156 and then it was changed to 378 in the year 1909 and now it is the same suit land. When there is specific denial of the respondents/defendants that the suit land is not part of khasra No. 156 rather it falls under khasra No. 305/155 and 379/155, so, the oral evidence is lacking. No documentary evidence to link; this khasra number is produced. 2. The report of the Local Commissioner opining that the suit land form part of khasra No. 156 has also not been accepted by the Courts below on the ground that the report is not in accordance with the requirements laid down by this Court in the High Court Rules and Orders Volume I, Chapter I-M under the heading Hadd Shikni. The report of the Local Commissioner opining that the suit land form part of khasra No. 156 has also not been accepted by the Courts below on the ground that the report is not in accordance with the requirements laid down by this Court in the High Court Rules and Orders Volume I, Chapter I-M under the heading Hadd Shikni. The illegalities pointed out in the report of the Local Commissioner by the Courts below is that the demarcation of the suit property has not been made by fixing three pucca points as is required by the High Court: rules and Orders (supra). It has further been found that defendant-respondents were not associated nor they were called to come on the spot. The afore-mentioned position emerges from the reading of paras 16, 17 and 18 of the judgment. 3. Having heard the learned Counsel at a considerable length and perusing the judgment and decrees passed by the Courts below I am of the view that no interference of this Court in exercising of jurisdiction under Section 100 of the Code would be warranted because these are pure findings of fact as to whether the suit land forms part of khasra No. 156 or not. It is also a finding of fact that the Local Commissioner did not fix the pucca points in accordance with the norms prescribed in Chapter I-M of the High Court Rules and Orders (supra) alongwith the fact that the defendant-respondent was not associated at the time of demarcation. Such a report can hardly be considered as reliable in the eyes of law. There is no room to interfere as no question of law has been raised nor the one in fact arises for determination. The appeal is wholly without merit. For the reasons recorded above, this appeal fails and the same is dismissed.