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2010 DIGILAW 104 (PNJ)

Banwari v. Om Kaur

2010-01-07

MAHESH GROVER

body2010
Judgment MAHESH GROVER, J. 1. This appeal by one of the defendants is directed against the judgment of the learned first Appellate Court dated 26.8.2009 vide which the judgment of the learned trial Court dated 15.4.2009 was reversed. 2. The facts of the case are that the plaintiff-respondents filed a suit for permanent injunction on the plea that they were owners in possession of the suit property for the last more than 30 years. The property was purchased from Jogi Ram, Hari Ram, Smt. Chandro and the father of the appellant-defendant and since then they are in continuous possession of the same. They had constructed boundary wall and two rooms, installed a hand pump and planted trees in it. It was alleged that the appellant-defendants were trying to usurp the possession and interfere in their peaceful possession. The appellants took up the plea that the plaintiff-respondents are not the owners and neither they are in physical possession of the property in dispute. It was pleaded that the disputed property is part of killa nos.111, 112 and 113 which was jointly owned by the ancestors of the appellant-defendants, out of which some land had been alienated to one Jane son of Jitan Lal about 10 years ago while some land was still in possession of some of the defendants. The site plan attached with the plaint was also disputed and it was pleaded that in the revenue records the plaintiff- respondents have been erroneously recorded as owners in possession who have rather executed affidavits in favour of the defendants surrendering the possession of the disputed property. The parties went to trial on the following issues :- 1. Whether the plaintiffs are owners in possession of the suit property?opp 2. Whether the plaintiffs are entitled for a decree for permanent injunction as prayed for and on the grounds mentioned in the plaint?opp 3. Whether the plaintiffs have not come to the court with clean hands?opd 4. Whether the plaintiffs have no cause of action to file the present suit?opd 5. Whether the defendants are entitled for special costs u/s 35-A, cpc?opd 6. Relief. 3. The learned trial court concluded that the suit of the plaintiff-respondents was misconceived and the same was dismissed. In appeal, the findings were reversed. 4. Whether the plaintiffs have no cause of action to file the present suit?opd 5. Whether the defendants are entitled for special costs u/s 35-A, cpc?opd 6. Relief. 3. The learned trial court concluded that the suit of the plaintiff-respondents was misconceived and the same was dismissed. In appeal, the findings were reversed. 4. Assailing the aforesaid findings of the first Appellate Court, learned counsel for the appellant has contended that the affidavits which were placed on record as Exhibits D-3 to D-5 indicating the surrender of possession by the plaintiff-respondents in favour of the appellant-defendants have been ignored by the learned first Appellate Court and, therefore, the findings recorded by it are perverse. He contended that there is evidence on record to show that although the land was in possession of the plaintiff-respondents, yet they have surrendered the possession in favour of the Gram Panchayat and had migrated to some other village and that subsequent thereto there is no material to show as to how they entered the possession of the disputed property. He further contended that the ownership has been rightly disbelieved by the courts below and in the absence of any rightful title to possession, the first appellate Court has gone wrong in recording such a finding and decreeing the suit. I have heard the learned counsel for the appellant and have perused the impugned judgments. 5. The plaintiff-respondents had pleaded that they were owners in possession of the suit property. The oral evidence led by them was consistent. All the witnesses stated that Jai Pal and Om Kaur, who were the plaintiffs, had constructed a house on the disputed property 35 years ago, installed a hand pump, constructed boundary wall and also planted trees therein. There was on record ration-card of Om Kaur on the address of the disputed plot and the Gram Panchayat had also issued receipts of house-tax in respect of the disputed property in the name of husband of Om Kaur. So much so, this testimony was fortified by the testimony of Ram Mehar who admitted that the plaintiff-respondents had been residing in the suit property by constructing a house for the last more than 30 years and they have installed a hand pump and constructed a boundary wall and also planted trees in it. So much so, this testimony was fortified by the testimony of Ram Mehar who admitted that the plaintiff-respondents had been residing in the suit property by constructing a house for the last more than 30 years and they have installed a hand pump and constructed a boundary wall and also planted trees in it. On the basis of these pieces of evidence the first Appellate Court has recorded a pure finding of fact regarding possession of the plaintiff-respondents. There is no reason why this Court should differ with the aforesaid findings and especially in the wake of overwhelming material in the shape of ration-card and house-tax receipts and also the testimony of DW2 Ram Mehar who supported the case of the plaintiff-respondents. In any eventuality, this is a pure question of fact and nothing has been shown to this Court so as to warrant any interference. No substantial question of law arises for the consideration of this Court. 6. That apart, the appeal is barred by 12 days in filing for which no sufficient reason has been given. However, the application for making up the deficiency of court fee is allowed. The appeal stands dismissed.