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2012 DIGILAW 273 (HP)

Telu Ram v. Ram Dass

2012-05-11

RAJIV SHARMA

body2012
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree dated 17.4.2001 rendered by the learned District Judge, Bilaspur in Civil Appeal No. 71 of 1994. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that appellant-plaintiff (hereinafter referred to as plaintiff for convenience sake) filed a suit for permanent prohibitory injunction against the respondents-defendants (hereinafter refereed to as defendants for convenience sake) restraining the defendants from causing any interference in the land measuring 0-2-5 bighas shown as Khasra No. 607/2 in tatima of village Panjgain and for mandatory injunction directing the defendants to remove the bricks, which have been kept in the suit land. According to the plaintiff, she is owner in possession of the land as per tatima dated 22.2.1977 and as earmarked khasra No. 607/1, which is part of khasra No. 607. In 1984, she had filed suit for permanent injunction pertaining to the land measuring 0-3-3 bighas as shown in Khasra No. 607/1 in the tatima against Ram Dass, i.e. defendant No. 1 and Lahori Ram, husband of defendant No. 3, namely, Neero since they had started interfering in the portion of the suit land. Suit was decreed on 28.6.1985. Defendants No. 1 to 3 constructed a structure on this land and the plaintiff filed execution of the decree for getting the structure demolished. The learned Sub Judge after spot inspection and demarcation got the construction removed but they piled the bricks removed from Khasra No. 607/1 in Khasra No. 607/2. They started interfering with the peaceful possession of the plaintiff on the suit land comprising Khasra No. 607/2. It is in these circumstances, plaintiff filed the suit. 3. Suit was contested by the defendants by filing written statement. According to the defendants, plaintiff was not the owner in possession of the land measuring 0-7 bighas. She was in possession of a portion of measuring 0-3 bighas comprising Khasra No. 607/1 and the entire Khasra No. 607 is Abadi Deh. The defendants have dismantled the structure and the material was kept on Khasra No. 607/2. 4. Learned Senior Sub Judge framed issues on 8.10.1991. He dismissed the suit on 31.8.1994. Plaintiff preferred an appeal before the learned District Judge, Bilaspur. He also dismissed the same on 17.4.2001. Hence, the Regular Second Appeal. It was admitted on the following substantial question of law: 1. 4. Learned Senior Sub Judge framed issues on 8.10.1991. He dismissed the suit on 31.8.1994. Plaintiff preferred an appeal before the learned District Judge, Bilaspur. He also dismissed the same on 17.4.2001. Hence, the Regular Second Appeal. It was admitted on the following substantial question of law: 1. Whether the courts below have utterly misread and mis-appreciated the documents Ex.PA and PB which vitiate the impugned judgment and decree? 5. It will be apt at this stage to note that Ram Devi plaintiff died during the pendency of the appeal before the learned District Judge. Her legal representatives were brought on record. 6. Mr. R.D. Kaundal has strenuously argued that both the courts below have misread and misconstrued Ex.PA and PB. 7. Mr. B.N. Gupta has supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have perused the records carefully. 9. Plaintiff Ram Devi has appeared as PW-1. According to her, she was in possession of Abadi Deh on the basis of tatimas. She has stated in examination-in-chief itself that after the demolition of the structure from the land khasra No. 607/1, the defendants kept the bricks in her land itself and thereafter they did not remove the same. It is, thus, evident that the bricks have been kept in Khasra No. 607/1, which is not at all the suit land. According to the plaint, defendants have kept the bricks in khasra No. 607/2. 10. PW-2 Gian Chand had prepared the tatima Ex.PA. PW-3 Krishanoo Ram had prepared tatima Ex.PB. Statement of PW-4 Salig Ram is relevant with respect to previous litigation of the parties. Statements of PW-5 and PW-6, being vague, have been discarded by the courts below with respect to possession of the plaintiff and identity of the suit land. 11. DW-1 Ram Dass has stated that the suit land is in possession of the defendants and they have constructed a wall over the same. DW-2 Jagar Nath has stated that in Khasra No. 607 which is abadi, plaintiff is in possession to the extent of three biswas and defendants are in possession to the extent of four biswas. DW-3 Basu Dev, DW-4 Shayam Lal and DW-5 Kali Dass have supported the version of DW-1. According to copy of jamabandi Ex.PC, land measuring 39 bighas comprising Khasra No. 607 is Abadi Deh. DW-3 Basu Dev, DW-4 Shayam Lal and DW-5 Kali Dass have supported the version of DW-1. According to copy of jamabandi Ex.PC, land measuring 39 bighas comprising Khasra No. 607 is Abadi Deh. Land comprising Khasra Nos. 607/1 and 607/2 is part of the said land. 12. Plaintiff has not led any tangible evidence on record to establish that she is owner in possession of 0-7 bighas of land. In plaint, it has been mentioned that Khasra No. 607/1 was measuring 0-7 bighas. It is contrary to the averments made in para 2 of the plaint. According to the averments contained in para 2, in the previous suit, Khasra No. 607/1 was involved and it measured only 0-3 bighas. In para 4 of the plaint, it is stated that after removal of the construction, the defendants had kept the bricks on land comprised in Khasra No. 607/2. However, in her statement, she has stated that the bricks were kept by the defendants in khasra No. 607/1. According to Ex.PA tatima, khasra No. 607/1 measured 0-3 bighas and not 0-7 bighas as stated in the plaint. According to tatima Ex.PB, the suit land is 0-3 bighas and not 0-7 bighas. In Ex.PA, khasra No. 607/2, i.e. suit land has been shown as 0-4 biswas and in tatima Ex.PB, khasra No. 607/2 has been shown as 0-2 bighas. The plaintiff has failed to prove that she is in possession of the land to the extent of 7 biswas since there is variance in the plaint and documents placed on record with regard to measurement of khasra Nos. 607/1 and 607/2. This has not been explained. 13. Consequently, both the courts below have correctly appreciated Ex.PA and PB and there is no need to interfere with the judgments and decrees passed by both the courts below. 14. Accordingly, in view of the observations and discussions made herein above, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.