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2009 DIGILAW 1005 (PNJ)

Jagdish Chander v. Vinod Kumar

2009-05-25

MAHESH GROVER

body2009
JUDGMENT Mahesh Grover, J.:- C.M. No. 3399-C of 2008 C.M is allowed as prayed for. RSA No. 1142 of 2008(O&M) 2. This is plaintiff’s second appeal directed against the judgments of the learned Trial Court dated 14.9.2006 and that of the learned First Appellate Court dated 22.8.2007. 3. A suit for perpetual injunction was filed by the plaintiff-appellant seeking to retrain the defendants-respondents from interfering in his peaceful possession over plot comprising of Khasra no. 111, situated in the revenue estate of village Naggal which has been described in the plaint. The case of the plaintiff is that a gift deed was executed by Roshan Lalbrother of one Shakuntla Devi in her favour in the year 1966. Shakuntla Devi is wife of Harbans Lal who is brother of appellant. A family settlement was arrived at between plaintiff and his two brothers namely Balraj and Harbans Lal regarding the entire property which includes the property belonging to three brothers and the property of Shakuntla Devi and thereafter a settlement was arrived at according to which suit property came to the share of the appellant. 4. It is contended that the plaintiff is in possession of the suit land and has raised construction in the shape of boundary wall and the respondents are trying to interfere in his peaceful possession. 5. The respondents who are the purchasers of the suit property from Shakuntla Devi arrayed as defendants filed their written statement and denied the averments made in the plaint and pleaded that they have a valid sale deed dated2.6.1999 in their favour which was for a consideration of Rs.1,30,000/- and the said sale deed was registered on 11.6.1999. It is pleaded that according to the revenue record Shakuntla Devi was recorded as the owner which fact was verified by them before the sale and consequently they are the bona fide purchasers of the suit property. They also filed a counter claim seeking the possession of the suit property pleading encroachment of the area measuring 6' x 102' by the plaintiff. It was pleaded by them in this counter claim as also the written statement filed earlier that the plaintiff had encroached upon an area measuring 6' x 102' belonging to them. For the consequential relief of perpetual injunction counter claim was also filed seeking to restrain the plaintiff to interfere in their possession. 6. It was pleaded by them in this counter claim as also the written statement filed earlier that the plaintiff had encroached upon an area measuring 6' x 102' belonging to them. For the consequential relief of perpetual injunction counter claim was also filed seeking to restrain the plaintiff to interfere in their possession. 6. Both the parties went to trial on the following issues:- 1. Whether plaintiff is entitled to injunction as prayed for?OPP 2. Whether the suit is not maintainable?OPD 3. Whether plaintiff has no locus standi and cause of action to file the present suit?OPD 4. Whether plaintiff has concealed the material facts from the Court?OPD 5. Whether defendants are entitled to get the possession of the land measuring 6' x 102' = 68 Sq. Yards., a part of khasra no. 111, situated at village Naggal by way of counter-claim, if so, to what effect?OPD 6. Relief 7. Both the Courts returned a finding that the plaintiff had failed to establish the factum of partition amongst the brothers and also failed to establish that this property of Shakuntla Devi had come to him by way of partition. The Courts further went on to held that the sale deed in favour of the respondents was valid. The suit of the plaintiff was dismissed while the counter claim of the defendants was allowed. 8. Learned counsel for the appellant while assailing the findings of both the Courts below had contended that both the Courts have gone wrong in not taking into consideration the family settlement dated 17.1.85 which is on record marked as ‘A’. He contended that aforesaid agreement clearly pointed out to the settlement inter se between the brothers and that the suit property came to the share of the appellant by virtue of the said agreement. It was further contended that since the document was on record, the Courts ought to have appreciated the same. It is thus his contention that non-consideration of the aforesaid document has resulted in erroneous findings being returned by the Courts below. 9. I have heard the learned counsel for the appellant and have perused the impugned judgments. 10. It is the case of the appellant that a settlement had been arrived at on 17.1.1985 and the said document is on record as mark ‘A’. 9. I have heard the learned counsel for the appellant and have perused the impugned judgments. 10. It is the case of the appellant that a settlement had been arrived at on 17.1.1985 and the said document is on record as mark ‘A’. A perusal of the impugned judgments show that merely a photocopy was placed on record as mark ‘A’ whereas its Hindi version was put on record as mark ‘B’. The documents were not proved in accordance with law. There is no explanation forthcoming as to whether original of the said settlement is existing or lost or the appellant was precluded from bringing it to Court for the reason which was beyond his control. In this view of the matter, the Courts below have rightly discarded this document. Besides it is to be noticed that the appellant had pleaded a family settlement between the brothers namely Balraj, Harbans Lal and himself but he failed to implead the other two brothers as defendants in his suit. The family settlement, if any, being inter se between the brothers could have been tested by them as defendants. The present respondents are purchasers of the property from Shakuntla Devi vide registered sale deed dated 2.6.1999. There is no evidence to show that the sale deed is bad for some reasons. 11. In this view of the matter, when there is ample evidence on record to show that Roshan Lal-brother of Shakuntla Devi had executed a valid gift deed in her favour in the year 1966 and the land was constantly recorded in the revenue entries in her name and further in the absence of any evidence to show the existence of any agreement or family settlement between the plaintiff and his brothers and also in the absence of any evidence to show that the property had ever come to the appellant, the findings recorded by both the Court below cannot be faulted with as the plaintiff-appellant has miserably failed to prove his case. 12. According to the learned counsel for the appellant, the following questions of law arises for the consideration of this Court:- 1. Whether the evidence brought on the record has been misappreciated therefore the judgments and decrees passed by the courts below are perverse? 2. Whether the judgments have been passed on conjectures and surmises? 13. 12. According to the learned counsel for the appellant, the following questions of law arises for the consideration of this Court:- 1. Whether the evidence brought on the record has been misappreciated therefore the judgments and decrees passed by the courts below are perverse? 2. Whether the judgments have been passed on conjectures and surmises? 13. For the reasons which have been stated above, it has been held that document which is not proved in accordance with law cannot be taken into consideration and Courts have rightly discarded the same and consequently it cannot be held that there is any mis-appreciation of the facts and material on record and that the judgements have been passed on conjecture and surmises. Consequently, the appeal being devoid of any merit is hereby dismissed. That apart, the appeal is also barred by a delay of 27 days which has not been explained satisfactorily. Therefore, the appeal is also dismissed on the point of limitation as well. --------------