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2009 DIGILAW 1143 (PNJ)

Israil v. Usman

2009-07-14

SHAM SUNDER

body2009
Judgment Sham Sunder, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 20.11.2002, rendered by the Court of Civil Judge (Junior Division), Nuh, vide which it dismissed the suit of the plaintiffs for permanent injunction and the judgment and decree dated 25.09.2004, rendered by the Court of Additional District Judge, Fast Track Court, Gurgaon, vide which it dismissed the appeal. 2. Shorn off unnecessary details, the facts relevant for the decision of this appeal, are that the plaintiffs (now appellants) claimed themselves to be the owners in possession of the land measuring 14 kanal 17 marlas, situated within the revenue estate of village Allawalpur, Tehsil Nuh, District Gurgaon. It was stated that earlier the suit land was joint alongwith Panchayat and the same was duly partitioned, and rapat no.103 in the rojnamcha was entered on 15.11.2000. It was further stated that, in this regard, mutation No. 4452 dated 17.01.2001 was also sanctioned. It was further stated that the defendants, being strangers, having no right, title or interest, in the land, in dispute, were bent upon interfering into the peaceful possession of the plaintiffs (now appellants). They were requested a number of times, not to do, but to no avail. On their final refusal to admit the claim of the plaintiffs, left with no alternative, a suit for permanent injunction was filed. 3. The defendants put in appearance, and contested the suit, by way of filing the irjoint written statement. They pleaded therein, that the suit was not maintainable. It was further pleaded that the plaintiffs had no locus standi to file the suit. It was denied that any partition of the land was fected. It was denied that the plaintiffs vvere the exclusive owners of the suit land. It was stated that the plaintiffs and the defendants are cosharers in the said land. It was further stated that rapat no. 103 and mutation no. 4452 were illegal, null and void, and not binding upon the rights of the defendants. The remaining averments, were specifically denied being wrong. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court on 22.11.2001 :- "1- Whether the plaintiffs are exclusive owner in possession over the suit land ? OPP 2- Whether the partition proceeding held are valid ? OPP 3- Whether the suit is not maintainable ? OPD 4- Relief." 5. 4. From the pleadings of the parties, the following issues, were framed, by the trial Court on 22.11.2001 :- "1- Whether the plaintiffs are exclusive owner in possession over the suit land ? OPP 2- Whether the partition proceeding held are valid ? OPP 3- Whether the suit is not maintainable ? OPD 4- Relief." 5. The parties led evidence in support of their case. The trial Court after hearing the Counsel for the parties, and on going through the evidence and record of the case, decided issue nos. 1 and 2, against the plaintiffs, and issue no.3, in favour of the defendants. Ultimately, the trial Court dismissed the suit. 6. Feeling aggrieved, against the judgment and decree dated 20.11.2002, rendered by the trial Court, the appellants filed an appeal before the Appellate Court, at Gurgaon, which vide its judgment and decree dated 25.09.2004 dismissed the same. 7. Still feeling dis-satisfied, the instant Regular Second Appeal has been filed, by the appellants. 8. I have heard the Counsel for the parties, and have gone through and perused the documents, on record, carefully. 9. The Counsel for the appellants, submitted that earlier the land, in dispute, was joint but, lateron, it was partitioned. He further submitted that after the partition of the land, in dispute, the plaintiffs(now appellants) became the exclusive owners, in possession thereof. He further submitted that the Courts below were wrong in dismissing the suit of the plaintiffs. He further submitted that the plaintiffs (now appellants) also filed an application for additional evidence, which too was dismissed, illegally. He further submitted that the defendants (now respondents) had got no right, title or interest, in the property. He further submitted that the judgments of the Courts below dismissing the suit of the plaintiffs were, thus, illegal and liable to be set aside, 10. On the other hand, the Counsel for the defendants (now respondents) submitted that the decree of partition, on the basis whereof, the land in dispute, allegedly fell to the lot of the plaintiffs (now appellants), was not produced. He further submitted that even as per the jamabandies, the parties were shown to be the joint owners, in joint possession of the suit land. He further submitted that the plaintiffs were not the exclusive owners of the land, in dispute. He further submitted that even as per the jamabandies, the parties were shown to be the joint owners, in joint possession of the suit land. He further submitted that the plaintiffs were not the exclusive owners of the land, in dispute. It was further submitted that merely on the basis of report no.103, the title to the property, could not be claimed, nor it could be said that the plaintiffs were in possession thereof. He further submitted that the judgments and the decrees of the Courts below, being legal and valid, were liable to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. No certified copy of the decree of partition was placed, on the record, showing that the land, in dispute, fell to the lot of the plaintiffs (now appellants) and they were put in exclusive possession thereof. F.ven report recorded in the roznamcha was not proved. Only a photocopy of the report was placed, on the record, which was marked as B and, therefore, could not be taken into consideration. The perusal of the jamabandi for the year 1981-82 clearly revealed that the land, in dispute, was owned by Cram Panchayat and was possessed by various persons including the plaintiffs, and grandfather of the defendants. The defendants are the grandsons of Eihura Khan. The jamabandi for the year 1981 -82 did not prove the case of the plaintiffs (now appellants) with regard to the exclusive possession over the land, in dispute. No evidence was produced that Bhura Khan was ever ejected from the land, in dispute, in accordance with the provisions of law. In the jamabandi for the year 1986-87, which was placed on the file, the plaintiffs alongwith the Panchayat were shown to be co-sharers, whereas Jai Singh etc. were shown to be the gair marusis. It is not known as to how the entries in the jamabandi for the year 1990-91, were recorded, in favour of the plaintiffs. No evidence was produced, on the record, that the entries in the khasra girdwaries were changed, in accordance with the provisions of law. and. thus, the same were reflected in the jamabandi. It is not known as to how the entries in the jamabandi for the year 1990-91, were recorded, in favour of the plaintiffs. No evidence was produced, on the record, that the entries in the khasra girdwaries were changed, in accordance with the provisions of law. and. thus, the same were reflected in the jamabandi. In the absence of production of the certified copy of the decree, on the basis whereof, the land in dispute and the other land was allegedly partitioned, and on the basis whereof, the plaintiffs claimed themselves to be the exclusive owners in exclusive possession of the same, their claim could not be said to have been proved. In this view of the matter, in my opinion, the concurrent findings, recorded by the Courts below, that the plaintiffs were not the exclusive owners, in exclusive possession of the land, in dispute, and, as such, were not entitled to the injunction prayed for, being based on the correct appreciation of evidence, and law, on the point, suffer from no illegality or perversity and warrant no interference. The judgments and the decrees of the Courts below, being legal and valid arc liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. In view of the above, finding no merit in the appeal, the same stands dismissed with costs. Appeal dismissed.