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2012 DIGILAW 1422 (PNJ)

Anoop Kumar v. Darshan Kumar

2012-10-08

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - This second appeal has been preferred by legal representative of original plaintiff Ram Parkash (since deceased). 2. Ram Parkash filed suit against his son Darshan Kumar – defendant-respondent seeking declaration that he is owner in possession of suit land measuring 12 kanals 08 marlas. Consequential relief of permanent injunction restraining the defendant from interfering in possession of the plaintiff thereon and from alienating the same was also claimed. 3. The plaintiff alleged that on obtaining copy of jamabandi for the year 1993-94 from Patwari Halqa, the plaintiff learnt that the defendant, in collusion with Revenue Officer, had got changed entry in revenue record regarding the suit land on the basis of alleged oral exchange, although no such exchange had taken place. 4. The defendant controverted the plaint averments and pleaded that in view of exchange between the parties, defendant is owner in possession of the suit land situated in Village Chak Bilgan, whereas plaintiff is owner in possession of the land situated in Village Dhandhua, which had been given to the plaintiff by defendant in exchange. 5. Both the courts below have dismissed the plaintiff’s suit. Legal representative of plaintiff has, therefore, filed this second appeal. 6. I have heard counsel for the appellant and perused the case file. 7. Counsel for the appellant vehemently contended that the alleged oral exchange or the agreement of exchange dated 28.10.1987 had to be established by the defendant, who had failed to establish the same. Discrepancy in the date of agreement was also referred to. 8. I have carefully considered the aforesaid contention, but the same, although apparently very attractive, is completely misconceived, meritless and frivolous. The exchange, set up by the defendant, was duly acted upon and was reflected in revenue record for more than 12 years before the filing of the suit. It cannot be said that the plaintiff remained oblivious of the said change in the revenue record for more than 12 years. If the plaintiff had continued to be owner in possession of the suit land during the said period of more than 12 years, he would not have remained unaware of the revenue entries depicting defendant to be owner as well as in possession of the suit land. 9. Added to it, the plaintiff himself did not step into the witnessbox. If the plaintiff had continued to be owner in possession of the suit land during the said period of more than 12 years, he would not have remained unaware of the revenue entries depicting defendant to be owner as well as in possession of the suit land. 9. Added to it, the plaintiff himself did not step into the witnessbox. It was within the personal knowledge of the plaintiff if the alleged exchange had taken place or not. Plaintiff’s attorney Ramesh Kumar, who appeared in the witness-box, could have no personal knowledge of the alleged exchange. Consequently, strong adverse inference arises against the plaintiff for not stepping into the witness-box. 10. It is also significant to notice that plaintiff’s attorney Ramesh Kumar admitted in the trial court at the time of arguments that the plaintiff had mortgaged the land of Village Dhandhua (received by him in exchange from defendant) even prior to the filing of the suit for the purpose of taking loan for purchase of tractor and had also mortgaged the same vide report dated 29.01.2004 during pendency of the instant suit. In spite of this factual position, it is surprising that the plaintiff had the guts to state that no exchange had taken place. Not only that, even after dismissal of the suit, the plaintiff did not feel satisfied and the plaintiff preferred first appeal through legal representative, who has also filed the instant second appeal. 11. For the reasons aforesaid, I find that the instant second appeal is not only meritless but is also frivolous, which deserves to be dismissed with exemplary costs because frivolous litigation has to be curbed with strong hand. Courts are already over-burdened with cases and such frivolous litigation is adding to the burden of the Courts. The plaintiff, having himself taken the benefit of the exchange and having mortgaged the land received by him in exchange, could not be heard to say that the exchange had not taken place. 12. Concurrent finding recorded by both the courts below is fully justified by the evidence on record and is not shown to be perverse or illegal. The alleged discrepancy in the date of agreement of exchange carries no weight in view of the admitted factual position regarding the exchange having been acted upon. The finding recorded by the courts below is not shown to be based on misreading or misappreciation of evidence. The alleged discrepancy in the date of agreement of exchange carries no weight in view of the admitted factual position regarding the exchange having been acted upon. The finding recorded by the courts below is not shown to be based on misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is meritless and frivolous and is dismissed with costs of Rs.10,000/-, to be deposited with the Registry of this Court within one month from today, failing which the case shall be listed for this purpose.