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Uttarakhand High Court · body

2010 DIGILAW 741 (UTT)

RANBIR SINGH v. BOARD OF REVENUE

2010-09-30

B.S.VERMA

body2010
JUDGMENT Hon’ble B.S. Verma, J. By means of this petition, the petitioner Ranbir Singh (now deceased), substituted by his widow Smt. Hardei, has sought a writ in the nature of certiorari, quashing the impugned judgments and orders dated 12.10.1993, and 31.7.1995, Annexures 16 and 17 to the writ petition, passed by the respondent No. 2, Additional Commissioner (Judicial) Kumaun Mandal Nainital in first appeal and respondent No. 1, Board of Revenue, U.P. Allahabad, in second appeal, respectively, whereby in first appeal the judgment and decree passed by Additional Collector Ist Class/Additional Sub Divisional Officer, Kashipur in Suit No. 22/19 of 1991-92 filed U/S 209 of U.P. Z.A. & L.R. Act, was set aside and the appeal was allowed whereas in second appeal the judgment of first appellate court was upheld and the appeal of the plaintiff/petitioner was dismissed. 2. Briefly stated the facts, giving rise to this writ petition, are that the plaintiff/petitioner Ranbir Singh filed a suit U/S 209 of U.P. Z.A. & L.R. Act on 12.7.1989, corresponding agriculture year, i.e., 1397 Fasli, in respect of his land described at the foot of the plaint by Khasra (plot) numbers and its boundaries, situated in village Nandpur Nar Ka Topa, Tehsil Bazpur, District Nainital (now Udham Singh Nagar), against respondent No. 3/defendant Sri Harbhajan Singh Cheema. In the suit State was also impleaded as defendant no. 2, in view of provision of Sub-section (2) of Section 209 of U.P. Z.A. & L.R. Act, being a necessary party. 3. According to the petitioner, the petitioner is Bhumidhar with transferable right of the disputed land. The defendant/respondent Harbhajan Singh Cheema, Managing Director of Cheema Paper Mill trespassed over the land in suit in the end of 1395 Fasli and in spite of several requests of the plaintiff/petitioner he was not vacating the land. Hence the plaintiff/petitioner he was not vacating the land. Hence the plaintiff/petitioner filed the suit for eviction and damages for use and occupation. The further case of the petitioner/plaintiff is that the land in suit along with other land was acquired by the State Government for the purposes of establishing a Sugar Factory with a clear understanding that only the land actually utilized in the factory shall be retained and the rest land shall be returned back to the petitioner/plaintiff and the possession of the land was also not taken by the acquiring authority. Consequently, the acquiring authority vide notification annexed as Annexure No. 10 to the writ petition, de-notified eleven acres of land including the land in suit and the same was returned back to the petitioner/plaintiff and his name was duly entered as Bhumidhar with transferable rights again in the revenue records. The land revenue of the land was determined. The copy of khatauni has also been annexed with the writ petition as Annexure No. 12. The petitioner also filed revenue payment receipt Annexure No. 11. 4. The respondent No.3/defendant No.1 in the suit, Sri Harbhajan Singh Cheema, contested the suit by filing his written statement, mainly on the ground that the petitioner/plaintiff is not a Bhumidhar of the land in suit; the land is not a identifiable; Cheema Paper Mill is in possession of the land in suit and he is not in possession of the said land. The defendant also pleaded that the suit is barred by limitation. 5. On the pleadings of parties, the trial court framed issues in the suit. Thereafter, both the parties adduced their evidence before the trial court. The trial court after hearing learned counsel for parties and assessing the entire evidence on record, held that the petitioner/plaintiff is Bhumidhar of the land, the land is identifiable, and Harbhajan Singh Cheema has trespassed over the land in suit in 1395 Fasli, and decreed the suit of the plaintiff/petitioner for ejectment of the defendant No.1/respondent No.3. However, the trial court did not award the damages to the plaintiff/petitioner as the same could not be proved. 6. Being aggrieved by the judgment and decree of the trial court, the defendant No.1/respondent No.3, Harbhajan Singh Cheema, preferred first appeal before Commissioner Kumaun Division, Nainital which was transferred for decision to the respondent No.2/Additional Commissioner (Judicial) Kumaun Mandal Nainital, who allowed the appeal and set aside the judgment and decree passed by the trial court. 7. Thereafter being aggrieved from the judgment of the first appellate court, the petitioner/plaintiff preferred second appeal before Board of Revenue Allahabad/respondent No.1, who dismissed the second appeal vide its judgment and order dated 31-7-1995 and affirmed the judgment and order passed by the first appellate court. 8. 7. Thereafter being aggrieved from the judgment of the first appellate court, the petitioner/plaintiff preferred second appeal before Board of Revenue Allahabad/respondent No.1, who dismissed the second appeal vide its judgment and order dated 31-7-1995 and affirmed the judgment and order passed by the first appellate court. 8. Now, being aggrieved by the judgment and order of first appellate court as well as the judgment and order of second appellate court, the petitioner/plaintiff has filed this writ petition mainly on the ground that the two judgments of the appellate courts dated 12.10.1993 and 31.7.1995, Annexures 16 and 17, passed by respondent No. 2/Additional Commissioner (Judicial) Kumaun Mandal Nainital and respondent No. 1/Board of Revenue U.P. Allahabad, respectively, are not in accordance with law; they have been delivered without considering the material evidence on record and these judgments are against the evidence on record. It is also alleged in the writ petition that the first appellate court has simply mentioned the submissions of parties and has not recorded any findings on the disputed points. The second appellate court has not mentioned the reasons and grounds of findings. Thus these judgments are no judgments in the eyes of law and the findings recorded are perverse and based on misreading of the evidence on record, therefore, the same are liable to be quashed and the judgment and decree of the trial court is liable to be sustained. 9. In the writ petition the respondent No. 3 filed his counter affidavit and has alleged that M/s Cheema Paper Mills purchased the land from one Succha Singh on 18.7.1981 by a registered sale deed and the plaintiff/petitioner filed the suit for eviction against the respondent after a long period, while according to the U.P. Tenancy Act three years limitation is prescribed. He also alleged that the petitioner is not the Bhumidhar of the land in suit; the suit is misconceived; the land in suit is not identifiable and the petition is liable to be dismissed. 10. In reply to the counter affidavit the petitioner also filed rejoinder affidavit, stating therein that the suit is within time, the land is identifiable and Cheema Paper Mill had purchased land from Succha Singh in village Bhauna Islamnagar and it is different land in different village. 10. In reply to the counter affidavit the petitioner also filed rejoinder affidavit, stating therein that the suit is within time, the land is identifiable and Cheema Paper Mill had purchased land from Succha Singh in village Bhauna Islamnagar and it is different land in different village. The petitioner also annexed the copy of sale deed with the rejoinder affidavit, and this document excludes the land in suit, which is situated in village Nandpur Nar Ka Topa. 11. I have heard learned counsel for the parties and have gone through the record. 12. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 of the Constitution of India is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or revaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. 13. The Apex Court in the case of Achutananda Baidya Vs. Prafullya Kumar Gayen & Ors. Reported in 1997, Supreme Appeals Reporter (SC) 433, has held that “if the evidences on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior court or Tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstance, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact.” 14. The Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 Supreme Court Cases, 675] has held that “On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” 15. Further in the case “Ranjeet Singh Vs. Further in the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 16. In above premise, evidence led by parties in the suit shall also be referred to in order to examine the perversity and for just decision of the case. 17. Learned counsel for the petitioner/plaintiff has challenged the judgment of first appellate court on the ground that the first appellate court has simply mentioned the submissions made by the parties and has not recorded any findings on any disputed points and also did not record any grounds of reasons for allowing the appeal and set aside the judgment and decree passed by the trial court in a hasty manner, and the judgment of appellate court is not a judgment in the eyes of law as per the provisions of Order 41, Rule 31 C.P.C. In support of the argument, reliance has been placed on the judgment L.N. Aswathama & Anr. Vs. P. Prakash, reported in 2009 SAR (Civil) 684 and Santosh Hazari Vs. Purushottam Tiwari (Dead) by LRs., reported in 2001 (1) Allahabad Rent Cases, 449. 18. Learned counsel for the petitioner also challenged the judgment of second appellate court on the ground that the second appellate court has also committed manifest error of law by misreading of the evidence brought on record. Purushottam Tiwari (Dead) by LRs., reported in 2001 (1) Allahabad Rent Cases, 449. 18. Learned counsel for the petitioner also challenged the judgment of second appellate court on the ground that the second appellate court has also committed manifest error of law by misreading of the evidence brought on record. It also did not consider this fact that the first appellate court did not reappreciate the entire material evidence independently, therefore, the judgment rendered by second appellate court is also against the spirit of provision of Order 41, Rule 31 C.P.C. It is also submitted by learned counsel for the petitioner/plaintiff that the finding of second appellate court that the land trespassed has not been shown in the settlement map, is wholly irrelevant and illegal because the trespass has been made after settlement and can be located easily when the delivery of possession is made on spot. 19. On the viewpoint of the above submissions of learned counsel for the petitioner/plaintiff, I have also perused the provision of Order 41, Rule 31, C.P.C. Section 341 of U.P. Z.A. & L.R. Act, makes provision of application of certain Acts to the proceedings of Z.A. & L.R. Act, which reads as below – “341. Application of certain Acts to the proceedings of this Act – Unless otherwise expressly provided by or under this Act, the provisions of India Court-Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the Limitation Act, 1963 (XXXVI of 1963) including Section 5 thereof shall apply to the proceedings under this Act.” 20. From perusal of above provision it is quite clear that the provisions of C.P.C. 1908, are also applicable to the proceedings under Z.A. & L.R. Act. 21. I have also gone through the provision of Order 41, Rule 31, C.P.C., which reads as under – “31. Contents, date and signature of judgment – the judgment of the Appellate Court shall be in writing and shall state – (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; And shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.” 22. In view of above mandatory provision of Order 41, Rule 31 C.P.C. it was incumbent upon the first appellate court to state the points for determination and should have given its own decision on those points with reasons, which has not been done by the appellate court in this case. 23. I have also considered the case law (supra) cited by the learned counsel for the petitioner/plaintiff. 24. In the case of L.N. Aswathama & Anr. Vs. P. Prakash, reported in 2009 SAR (Civil) 684, the Hon’ble Apex Court has specifically held that if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence. The relevant para-8 of the judgment is quoted below – “8. The first appellate court can reappreciate evidence and record findings different from those recorded by the trial court. It is well settled that if the appraisal of evidence by the trial court suffers from material irregularity, as for example when its decision is based on mere conjectures and surmises, or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions which do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the basis of conjectures and surmises or without analyzing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence. The High Court has ignored these well-settled principles. In these peculiar circumstances, we have to examine the correctness of the findings recorded by the High Court.” 25. Therefore, in view of provision of Order 41, Rule 31, C.P.C. as well as the law laid down by the Hon’ble Apex Court as noted above, I find force in the contention of learned counsel for the petitioner/plaintiff, that the judgment and order passed by the first appellate court is based on conjectures and surmises. The first appellate court has reversed the judgment of the trial court without analyzing the relevant evidence in entirety. The first appellate court has reversed the judgment of the trial court without analyzing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently re-appreciate the entire evidence brought on record by the parties. But here the first appellate court has not done so. The first appellate court has not touched even a single issue framed by trial court and only mentioning the submissions of the parties in the judgment, reversed the judgment of the trial court. Therefore, I am of the view that the findings arrived at by the first appellate court were not based on proper appreciation of the evidence for all intents and purposes and in substance amounted to the conclusion that the decision of the first appellate court was based on no evidence and was perverse. 26. Likewise, the second appellate court also lost sight of the fact that first appellate court’s judgment is based on conjecture and surmises. It endorsed the judgment of first appellate court in a cursory manner without scrutinizing the fact that the findings of first appellate court are not based on proper appraisal of evidence of parties and have been given by misreading of evidence. Therefore, the impugned judgments passed by both the appellate courts cannot be said to be judgments based on proper appraisal of evidence and issues involved in the matter, and the same are liable to be quashed. 27. Once this court has reached to a definite conclusion that the impugned judgments passed by both the appellate courts are perverse and are not sustainable in the eyes of law, therefore, now it is to be seen whether the judgment and decree passed by the trial court is liable to be maintained or not? 28. The learned counsel appearing on behalf of respondent No. 3/ defendant has submitted that the suit was filed beyond the period of limitation. 29. Learned counsel for the petitioner/plaintiff refuted the above submission contending that unauthorized possession of the land was taken by the defendant in 1395 Fasli corresponding year 1988, therefore the limitation of the suit U/S 209 Z.A. & L.R. Act is 12 years. 30. I do not find any substance in the above submission of learned counsel for the defendant/respondent No. 3, on the point of limitation of the suit. 30. I do not find any substance in the above submission of learned counsel for the defendant/respondent No. 3, on the point of limitation of the suit. It has come in evidence that the defendant/respondent No. 3 has trespassed over the land in suit after the date of vesting. The contention of defendant/respondent No. 3 is that in the year 1982 the Paper Mill erected pucca boundary wall over the land in dispute towards north-south and in southern side of the boundary wall barbed wire fencing was fixed. But this contention has not been proved by the defendant before the trial court by adducing a cogent and reliable evidence. On the other hand the assertion of the plaintiff is that about one year before filing the suit, he had gone to Delhi and Rohtak in connection with treatment of his eyes, and he remained there for about one year and in his absence, the defendant No. 1, Harbhajan Singh Cheema had taken forcible illegal possession over the land in dispute and erected the boundary wall and fenced the land by barbed wire. The trial court after evaluating entire evidence available on record has arrived at a conclusion that defendant No. 1, Harbhajan Singh Cheema has raised constructions after taking unauthorized possession of the disputed land in 1395 Fasli. The suit has been filed on 12.7.89, therefore, it is well within time, as per provision mentioned in serial No. 30(iii) of Appendix-III, of Rule 338 of U.P. Zamindari Abolition & Land Reforms Rules, 1952, wherein 12 years period is prescribed for filing a suit for ejectment of a person taking or retaining possession of the land unlawfully, which forms a part of the holding of a Bhumidhar, Sirdar or Aami. 31. The next contention of learned counsel for the defendant/respondent No. 3, is that the suit is barred by the principle of estoppels. According to him in the year 1982 the Paper Mill erected pucca boundary wall over the land in dispute towards north-south and in southern side of the boundary wall fixed barbed wire but the plaintiff/petitioner did nt raise any objection to the above constructions, therefore, the suit is barred by the principle of estoppels. 32. According to him in the year 1982 the Paper Mill erected pucca boundary wall over the land in dispute towards north-south and in southern side of the boundary wall fixed barbed wire but the plaintiff/petitioner did nt raise any objection to the above constructions, therefore, the suit is barred by the principle of estoppels. 32. The trial court has decided this point on issue No. 5 and has recorded a specific finding that the defendant has not adduced any kind of evidence in support of his contention that he obtained possession of land from Succha Singh in the year 1981. Had it been so, the defendant could have very well produced Succha Singh in witness box in support of his contention. But Succha Singh has not been produced before the trial court for the reason best known to the defendant. On the other hand the plaintiff’s case is that when he had gone to Delhi and Rohtak in connection of treatment of his eyes, then the defendant Harbhajan Singh took illegal possession of the land in dispute and raised constructions thereon. Therefore, in view of above facts and circumstances of the case, I agree with the finding of the trial court that the suit is not barred by the principle of estoppel. 33. The next point raised by the defendant/respondent no. 3 is that the land in suit is not identifiable, and during the settlement proceeding the Bazpur Sugar Cooperative Mill was recorded Bhumidhar and the land was in possession of Cheema Paper Mill and it is not a land within the meaning of Section 3(14) of the U.P. Z.A. & L.R. Act. 34. In reply to above submission, the learned counsel for the petitioner/plaintiff has submitted that the petitioner was recorded a tenure holder as a hereditary tenant and thereafter by operation of law he became Bhumidhar of the land in suit and the land belongs to the category of land as defined U/S 3(14) of the U.P. Z.A. & L.R. Act. 35. In support of his case, plaintiff/petitioner Ranbir Singh has filed documentary as well as oral evidence before the trial court. The plaintiff/petitioner has specifically given the khasra plot numbers, with area and boundary of the disputed land at the end of the plaint. It is also the specific case of the plaintiff that the defendant/respondent no. 35. In support of his case, plaintiff/petitioner Ranbir Singh has filed documentary as well as oral evidence before the trial court. The plaintiff/petitioner has specifically given the khasra plot numbers, with area and boundary of the disputed land at the end of the plaint. It is also the specific case of the plaintiff that the defendant/respondent no. 3 has trespassed on the land in suit and it is covered by boundary wall and barbed fencing and the land is fully identifiable. It is also not the case of the defendant/respondent no. 3 that the disputed land is not the land of Khasra plots as described in the plaint. The trial court after assessing the evidence of Area Patwari P.W.6, Jalil Ahmad and other evidence of plaintiff’s witnesses, found that ‘Lai’ crop was standing on the land in dispute, which was sown by Ranbir Singh, and the disputed land was being used for cultivation, therefore, the land falls in the category as defined U/S 3(14) of the U.P. Z.A. & L.R. Act and it is undoubtedly identifiable at the spot. 36. It is also pertinent to mention here that the plaintiff has filed the suit for the ejectment of defendant/respondent No. 3 from a particular land of Khasra Nos. 165, 166, 167, total area 13 Bigha 9 Biswas on the ground that he is Bhumidhar with transferable rights of the land in suit. In the year 1957 the disputed land was wrongly shown in the notice issued for acquisition of land in favour of Bazpur Cooperative Sugar Factory Ltd. and from that very time plaintiff had made efforts for de-notification of the said land and the land could be de-notified in the month of March 1988. The possession of disputed land was never taken by acquiring authority and the defendant trespassed the land in suit in the back of the petitioner/petitioner. 37. To prove his case plaintiff/petitioner has filed Certificate Annexure-9, Gazette Notification dated 28.3.1988, Annexure-10, Revenue Payment Receipt, Annexure 11 and Copy of Khatauni, Annexure 12, to the writ petition, before the trial court. He also adduced oral evidence. On the other hand the defendant/respondent No. 3 did not file any documentary or other reliable evidence in support of his ownership, right or title over the land in dispute. 38. He also adduced oral evidence. On the other hand the defendant/respondent No. 3 did not file any documentary or other reliable evidence in support of his ownership, right or title over the land in dispute. 38. The Certificate issued by Manager, Bazpur Cooperative Sugar Factory, Annexure-9 indicates that on five acres land of plaintiff, pertaining to Khasra Nos. 44, 45, 46, 43 and 42/A, possession was taken by the Bazpur Sugar Factory and the remaining 11 acres of land for which acquisition notice was issued, was being cancelled from the list of acquisition and possession was never taken by the Bazpur Sugar Factory, on that land from the petitioner/plaintiff. Annexure No. 10, Gazette Notification further reveals that the State Government exercising the powers Under Sub Section (1) of Section 48 of Land Acquisition Act, 1894, de-notified the land shown in Schedule-II of the Notification. These plots were 162-A, 165/1, 166, 161-A, 164-A, 167, 12-C, total area 11 acres and were situated in village Nandpur Nar Ka Topa. Annexure-II also reveals that plaintiff Ranbir Singh had paid Rs. 165/- as land revenue during 1395 to 1397 Fasli. Copy of Khatauni, Annexure 12 further shows that the land de-notified by the State Government was entered in the name of plaintiff Ranbir Singh in the Khatauni. In this Khatauni disputed plots 165, 166, 167, including other Khasra numbers, were de-notified and entered in the name of the plaintiff. 39. The trial court on the basis of above documentary evidence as well as the oral evidence adduced by parties, came to the conclusion that the plaintiff/petitioner is recorded Bhumidhar of land in suit and rightly believed the contention of the petitioner that the defendant/respondent took illegal possession of the land in the back of the petitioner/plaintiff when he remained out for about a year. The trial court on the basis of evidence of Area Patwari as well as the entries in Khasra and Khatauni pertaining to village Nandpur Nar Ka Topa, also recorded a categorical finding that neither Harbhajan Singh Cheema nor Succha Singh have been recorded as land owner in the above Khatauni, whereas 17.07 Bigha land, including the disputed Khasra plots, is entered in the name of the plaintiff/petitioner. 40. 40. The only defence taken by defendant/respondents before the trial court as well as in the writ petition is that Succha Singh had sold 5 Bighas and 6 Biswas land of Khasra No. 32 pertaining to village Bhauna Islamnagar, vide sale deed dated 18.7.1981 in favour of Cheema Paper Mill and from 18.7.1981 Cheema Paper Mill is also in possession of the disputed land, which was earlier in possession of Succha Singh. It cannot be believed that when Cheema Paper Mill purchased the land from Succha Singh belonging to a different village, then how Cheema Paper Mill was handed over possession by Succha Singh of the land in suit which undisputedly belonged to another village. It appears that the defendant/respondent No. 3 in order to justify his illegal possession over the land in suit, tried to create a case in his favour by pleading above fact in his written statement, but in support of this fact, Succha Singh has not been examined in the case for the reason best known to the defendant. Succha Singh was a material witness and adverse inference is to be drawn against the defendant for non-examination of material witness Succha Singh. I find that the plaintiff has been successful in establishing his case that he is recorded the exclusive owner of the land in suit and the defendant/respondent No. 3 has no right, title and ownership over the said land and he had trespassed over the land, and the trial court was justified in passing the judgment and decree in favour of the plaintiff/petitioner, for the ejectment of the defendant/respondent no. 3 from the land in suit. 41. As regards the plea of the defendant/respondent No. 3 that the possession over the land in suit is of Cheema Paper Mill, which is a juristic person and the suit against him has been wrongly framed, the learned trial court has dealt this point on issue no. 4, and trial court has rightly arrived at the conclusion that Cheema Paper Mill is an artificial person and definite person is Harbhajan Singh Cheema and the cause of action arises against the definite person; the plaintiff has filed the suit against Harbhajan Singh Cheema for his wrongful acts and he wanted the ejectment of Harbhajan Singh Cheema. Therefore, I find myself in agreement with the conclusion drawn by trial court that the suit was not framed on wrong facts. Therefore, I find myself in agreement with the conclusion drawn by trial court that the suit was not framed on wrong facts. 42. It is also mentioned here that the plaintiff had also demanded damages for wrongful possession and occupation of the defendant over the land in suit but the plaintiff could not prove the same by adducing reliable and sound evidence, therefore, the learned trial court has rightly rejected this part of relief sought by the plaintiff/petitioner. 43. In view of foregoing discussions, I am of the considered view that learned trial court has rightly held that the plaintiff/petitioner is the owner/Bhumidhar of the land in suit, over which the defendant/respondent No. 3, has taken illegal possession in the back of the plaintiff, and illegally raised boundary wall, and barbed wire fencing over it. The findings of first and second appellate courts are based on misreading of evidence and are perverse findings, therefore, the same are liable to be set aside and the conclusion drawn by the trial court is liable to be maintained. 44. The writ petition is allowed. The impugned judgments and orders dated 12.10.1993 and 31.7.1995, passed by first appellate court and second appellate court respectively, are hereby quashed. The judgment and decree dated 20.12.1992, passed by the trial court, is maintained.