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2013 DIGILAW 221 (HP)

CHAMAN LAL v. KRISHAN LAL

2013-04-03

DHARAM CHAND CHAUDHARY

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JUDGMENT JUSTICE DHARAM CHAND CHAUDHARY, J. - 1. THE challenge herein is to the judgment and decree dated 23.4.2002 passed by learned District Judge, Bilaspur in civil appeal No.105 of 2000 whereby the appeal has been dismissed and the judgment and decree dated 31.10.2000 passed by learned Sub Judge, Bilaspur in civil suit No.145/1 of 2000/97 is affirmed. 2. ADMITTEDLY, a piece of land measuring 2 biswas entered in Khewat No.148 min, Khatauni No.162 min bearing Khasra No.372/345/2 situated in village Noa, Tehsil Sadar, District Bilaspur belonging to the State Government was granted to deceased plaintiff Krishan Lal, Predecessor- in-interest of respondents No.1(a) to 1(e) under Gandhi Kuteer Yojna for construction of a shed to start business on the recommendation of Block Development Officer, Bilaspur. As per rapat rojnamcha, dated 21st March, 1997, Ex.PW-2/A, the possession thereof was delivered to deceased Krishan Lal in the presence of S/Shri Lekh Ram, former Pradhan, Gram Panchayat, Sunder Ram and Brahma Nand after demarcation given on the spot. He had not constructed any shed thereon and in the meanwhile, the appellants and respondents No.2 to 9 (hereinafter referred to as 'the defendants') allegedly started causing interference in the suit land. They also made a complaint to respondents No.11 and 12, the defendants in the trial Court to the effect that deceased plaintiff was living with his father who had sufficient ancestral land and the deceased had also share therein and, as such, neither he belong to a family living below poverty line nor entitled to the grant of land under Gandhi Kuteer Yojna. Also that deceased Krishan Lal had obtained the grant of land fraudulently by mis-representing the facts. The defendants also raised the plea of exchange of their land with government land and submitted that the suit land is part of the government land so ordered to be exchanged by the competent authority vide order dated 4.4.1985, Ex.D-H on the recommendations of Revenue Agencies vide report Ex.D-G, on their application Ex.D-F. It is in the above background, learned trial Court framed the following issues and tried the parties on the issues so framed: 1. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction? OPP. 2. Whether this Court has no jurisdiction to hear and decide the suit? OPD. 3. Whether the suit is bad for want of notice under Section 80 C.P.C.? OPD. 4. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction? OPP. 2. Whether this Court has no jurisdiction to hear and decide the suit? OPD. 3. Whether the suit is bad for want of notice under Section 80 C.P.C.? OPD. 4. Whether the suit is bad for mis-joinder of S/D.O.(C) Sadar, Bilaspur, as necessary party? OPD. 5. Relief. 3. THE plaintiff besides his own statement, has examined Shri Roshan Lal, Patwari, Patwar Circle, Bharoli Kalan, Tehsil Sadar, District Bilaspur and proved rapat Rojnamcha Ex.PW-2/A. The defendants, on the other hand, have examined Shri Hukam Chand, defendant No.2, who while supporting the case as set out in the written statement has also tendered the revenue record Ex.D-A to Ex.D-W to prove that the father of deceased plaintiff, Krishan Lal had sufficient ancestral landed property with him and also that the suit land is part of the land which came to them in exchange of their land with the government land. 4. ON appreciation of the evidence so produced by the parties, learned trial Court has concluded that the suit land has been granted to the plaintiff by the Government under Gandhi Kuteer Yojna after proper verification and on the recommendations of the Revenue Agencies and also that the defendants started causing interference therein without any right, title or interest and as such, the suit was decreed for the relief of permanent prohibitory injunction and in the event of the plaintiff is dispossessed from the suit land during the pendency of the suit, decree for possession also. The appeal preferred by the defendants also met the same fate as learned District Judge while concurring with the findings recorded by learned trial Court has dismissed the appeal vide judgment and decree impugned before this Court. 5. THE legality and validity of the impugned judgment and decree has been assailed on the grounds, inter alia, that the decree for possession of the suit land passed by learned trial Court demonstrates that deceased plaintiff was not in possession of the suit land. There being no appeal etc. preferred by the deceased plaintiff, the lower appellate Court was not justified in reversing that part of the decree and holding that it was not a case where the deceased plaintiff was in possession of the suit land and as such, the trial Court has erred in decreeing the suit for the relief of possession also. preferred by the deceased plaintiff, the lower appellate Court was not justified in reversing that part of the decree and holding that it was not a case where the deceased plaintiff was in possession of the suit land and as such, the trial Court has erred in decreeing the suit for the relief of possession also. The lower appellate Court has allegedly mis-read and mis-construed the evidence available on record which resulted in recording of erroneous findings. The order whereby S.D.O.(Civil) had granted the land to deceased Krishan Lal, as per the evidence available on record, was a nullity and to the contrary the suit land having been given to the defendants in exchange by the competent authority, has been duly established on record. Hence, no relief could have been granted to the plaintiff. The findings that the evidence produced by the defendants does not link with the suit land are also stated to be contrary to the documentary evidence, i.e. Ex.D-F to Ex.D-V and jamabandis Ex.D-A to D-E. 6. THE appeal has been admitted on the following substantial question of law: "That plaintiff was not in possession of the property and, therefore, question of granting decree for injunction did not arise. Plaintiff was satisfied with the decree of possession, but the learned District Judge without cross objection or objection has allowed decree for injunction to remain when it is established that the plaintiff was not in possession of the property." Having gone through the evidence available on record and also the grounds of appeal as well as after hearing arguments addressed on both sides, this Court is of the considered opinion that no law point of such a nature which needs adjudication by this Court, is involved in the present lis and the present rather being a case of concurrent findings recorded by both Courts below after appreciation of the facts and circumstances as well as the evidence available on record in its right perspective, no interference of this Court is warranted. 7. ADMITTEDLY, the suit land has been granted to the deceased plaintiff, Shri Krishan Lal vide order of S.D.O. (Civil), Bilaspur under Gandhi Kuteer Yojna. 7. ADMITTEDLY, the suit land has been granted to the deceased plaintiff, Shri Krishan Lal vide order of S.D.O. (Civil), Bilaspur under Gandhi Kuteer Yojna. The defendants might have filed a complaint against the deceased plaintiff and as per the written statement filed on behalf of the defendant-State, i.e. defendants No.12 and 13, the same was under consideration of S.D.O.(Civil), Sadar, Bilaspur and who had to decide the same after affording an opportunity of being heard to the parties. It is also admitted by the said defendants that the possession of the suit land was given to deceased plaintiff on the spot. The Jamabandi Ex.D-C to D-E read that Shri Daya Ram, father of deceased plaintiff, Krishan Lal was owner in possession of landed property being a co-sharer; however, the name of deceased plaintiff does not figure in these documents. It is not known that the property with Shri Daya Ram, father of deceased plaintiff, Krishan Lal was ancestral and that the plaintiff had also a share in that as the same is not subject matter of dispute in the suit. The facts, however, remain that the deceased plaintiff was land-less at the relevant time when the suit land was granted to him under Gandhi Kuteer Yojna. Even if he has obtained the grant of land fraudulently or by mis-representing the facts, the complaint filed by the defendants is under consideration of the competent authority. However, when it is proved that the possession of the suit land was given to deceased plaintiff, Krishan Lal on the spot, he being in possession thereof, the action of the defendants to cause interference therein at the pretext that the same is part and parcel of the land which came to them in exchange, however, without any link evidence to this effect available on record, is illegal and without any cause. No doubt, the defendants have placed on record number of documents which reveal that they were allowed to exchange their land comprised in khasra No.93/2 measuring 1-5 bighas with government land bearing khasra No.93/3. The khasra number of the suit land, however, is 372/345/2. The suit land thus for want of cogent and reliable evidence cannot be considered to be part and parcel of the land which came to the defendants in exchange of their land with government land. The khasra number of the suit land, however, is 372/345/2. The suit land thus for want of cogent and reliable evidence cannot be considered to be part and parcel of the land which came to the defendants in exchange of their land with government land. The evidence, as has come on record by way of the documents Exts.D-F, D-G, D-H, D-I, D-J, D-L, D-M, D-N, D-O, D-P, D-Q and D-R is thus hardly of any help to the case of the defendants. In such a scenario, the Court below has not committed any illegality or irregularity while decreeing the suit for permanent prohibitory injunction against the defendants. 8. THE lower appellate Court has rightly reversed that part of the judgment and decree passed by the trial Court which deals with grant of relief for possession also for the reason that the plaintiff is proved to be in possession of the suit land. The defendants have miserably failed to prove otherwise that the suit land is in their possession and as such, the decree for possession was not warranted in this case. Such relief would have only been granted if established on record that they dispossessed the plaintiff from the suit land during the pendency of the suit. No such evidence, however, is available on record and as such, lower appellate Court has not committed any illegality or irregularity while reversing the decree of possession passed by learned trial Court. In view of what has been stated hereinabove, the defendants are not justified in claiming that both Courts below have mis-construed and mis-read the evidence available on record or that the suit land being part and parcel of the land which came to them by way of exchange, the plaintiff has no right title or interest therein. The present is also not a case of recording erroneous findings by both Courts below leading to pass a judgment and decree legally and factually unsustainable. The impugned judgment and decree cannot also be said to be perverse or contrary to the evidence available on record. The same rather deserves to be up-held and this appeal dismissed. 9. FOR all the reasons stated hereinabove, this appeal fails and the same is accordingly dismissed, however, without any costs. Any pending application shall also stand disposed of.