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2010 DIGILAW 907 (PNJ)

Birmati v. Angoori

2010-02-17

MAHESH GROVER

body2010
JUDGMENT Mahesh Grover, J.:- This Regular Second Appeal by the defendants/appellants is directed against the judgment and decree dated 30.11.2009 passed by the Additional District Judge, Sonipat (for short ‘the first appellate Court’), vide which the judgment and decree of the learned Trial Court dated 26.02.2009 was reversed and the suit of the plaintiff for permanent injunction was decreed. 2. The plaintiff-respondent filed a suit for permanent injunction seeking to restrain the appellants from interfering in her possession over the property, which was owned by her by virtue of gift deeds bearing Nos.7628 and 7625 dated 10.1.1977 executed by the Gram Panchayat in favour of her husband and brother-in-law. She pleaded that she had inherited the plot after the death of her husband and that the appellants had been trying to encroach upon the plot and usurp her possession. 3. The appellants denied the averments made in the plaint and pleaded that they are using this property for tethering the cattle and have installed a hand pump and other machinery required for daily use. They further pleaded that since they are in possession of the property since long, therefore, they have become owner by way of adverse possession. The parties thereafter went to trial on the following issues:- 1. Whether the plaintiff is owner in possession of the plots as mentioned in para No.1 of the plaint? OPP. 2. Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants from interfering in the peaceful possession as mentioned in para No.1 of the plaint and further restraining them from raising any kind of construction over the suit property?OPP. 3. Whether the suit is bad for non-joinder of necessary parties?OPD. 4. Relief. 4. Learned Trial Court dismissed the suit and the appeal filed by the plaintiff was allowed. Learned first appellate Court came to the conclusion that the plaintiff-respondent is the owner of the property by virtue of gift deeds executed by the Gram Panchayat in favour of her husband and brother-in-law and that the appellants had encroached upon some portion of the area, which was detected on 8.12.1993 during demarcation carried out in an earlier suit filed by brother-in-law of the plaintiff-respondent. Decree in favour of the respondent was passed restraining the appellants permanently from causing interference in peaceful possession of the respondent and also restraining the appellants from raising any kind of construction over the suit property. Decree in favour of the respondent was passed restraining the appellants permanently from causing interference in peaceful possession of the respondent and also restraining the appellants from raising any kind of construction over the suit property. 5. Aggrieved by the aforesaid findings, the defendants/appellants are in Regular Second Appeal to contend that the findings recorded by the first appellate Court are perverse and erroneous and liable to be set aside. 6. I have heard learned counsel for the appellants and have perused the impugned judgments. 7. Categoric findings of fact have been returned by the first appellate Court that the appellants have encroached upon the property unauthorizedly since 1993 and even during the course of proceedings, a Local Commissioner was appointed, who had ascertained the same fact. The appellants were unable to show any legal status for having occupied the property belonging to the respondent. 8. In the considered opinion of this Court, the pure question of fact, which has been determined by the first Appellate Court, cannot be interfered with while exercising its powers under Section 100 of the Code of Civil Procedure. 9. The Hon’ble Supreme Court in Rur Singh (Dead) through Lrs. And others Versus Bachan Kaur, (2009) 11 SCC 1, has observed as under:- “13. The High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure exercises a limited jurisdiction. It may interfere with a finding of fact arrived at by the trial court and/or the first appellate court only in the event, a substantial question of law arises for its consideration.” 10. Accordingly, the appeal is totally without any merit and the same is hereby dismissed. 11. The application for stay is also dismissed in view of the above. --------------------