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2013 DIGILAW 224 (JK)

Mohan Lal v. Joginder Lal

2013-04-17

MUZAFFAR HUSSAIN ATTAR

body2013
Plaintiff has filed Civil 2nd Appeal on the ground that his suit as well as First Appeal has been dismissed. Plaintiff instituted Civil Original Suit before the court of Munsiff, Udhampur against the respondents, wherein he pleaded that he is owner in possession of 02. Kanas and 10 Marias of land covered under survey Ho. 23 Min, situated at village Karlai Sukhi, Tehsil and District Udhampur for last 50 years. It was further pleaded in the plaint that defendant no. 1 without any authority of law sold 07 marla- of land out of the suit land in favour of the defendant no. 2. The defendants appeared and filed the First Appeal and issues were framed. Learned trial Judge dismissed the suit of '.he appellant. The decree of the trial judge was challenged before the Fist Appellate court which stands also dismissed by the First Appellate court. In view of the mandate contained in Section 100 of the CPC, Civil 2nd Appeal can he admitted to hearing only when substantial question of law is involved. Learned counsel for the' appellant, while referring to the paragraph 4 of the memo of Appeal submitted that question\formulated by the Appellant are the substantial question of law. In order to arrive at a finding whether any substantial question of law is involved, statement of the plaintiff as reflected in Trial court judgment is taken note of: "...During corss-examination the. witness stated that 10 kanals-19 marlas land is in survey no. 23 it is stated that the defendant no. 1 has sold 7 marlas of land out of suit land to defendant no. 2 and 06 marlas to someone jelse out of survey no.23 and not from the suit land. It stated that the plaintiff has no knowledge as to whether the defendant no.1 has purchased the land from the survey no.23 and is in possession of the land. It is also stated that the plaintiff has not challenged the sale deed placed on record by the dependent no. 1. It is stated that Ram Chand was the owner of whole survey no.23. it is also stated that the plaintiff cannot say as to where the land of defendant no. 1 is? It is also stated that the defendant no.2 constructed the house during the status quo order in November, 2000 and completed within a week and the defendant no.2 is residing in that house now. it is also stated that the plaintiff cannot say as to where the land of defendant no. 1 is? It is also stated that the defendant no.2 constructed the house during the status quo order in November, 2000 and completed within a week and the defendant no.2 is residing in that house now. It is stated that an appeal was filed in November, 2000 against the plaintiff u/s 4 and 8 of Agrarian Reforms Act & the status quo order was passed against the plaintiff. It is also stated by the plaintiff that everywhere in survey no.23 the houses have been constructed, however the land of the plaintiff is empty. It is stated that the house of the plaintiff is in survey no.53 which is adjacent to survey no.23”. Learned counsel for the appellant was requested to show as to whether the statement is correctly reflected in the judgment. Learned counsel read the statement of the plaintiff which he has made before the Trial court In the Trial court appellant-plaintiff in his cross-examination admitted that survey no. 23 comprises of 18 kanals -19 marlas of and it is also admitted that the Aks-Titma of survey no. 23 about the suit land measuring 02 kanals- 10marlas has not been enclosed with plaint. It is also admitted that respondent no. 1 has sold 07 marlas of land out of suit land to defendant no. 2 and 06 marlas of land to some one else though out of survey no. 23 but not from the suit land. He has also admitted that he has no knowledge, as to whether respondent no. 1 has purchased the land from survey no. 23 and is in possession thereof. It is further admitted that appellant-plaintiff has not challenged sale deed. It is further admitted that Ram Chand was the owner of whole survey no. 23. The plaintiff, however, deposed before the Trial court that he cannot say where the land of defendant no. 1 is. The appellant has also admitted in his statement that house has been constructed in survey no. 23 and land of the plaintiff is 'empty', thus conveying the same is vacant it is also admitted that his house is situated in survey no. 53 which is adjacent to survey no. 23. 1 is. The appellant has also admitted in his statement that house has been constructed in survey no. 23 and land of the plaintiff is 'empty', thus conveying the same is vacant it is also admitted that his house is situated in survey no. 53 which is adjacent to survey no. 23. Contention of the learned counsel for the appellant is the relief should have been moulded by the Trial court cannot be\accepted in the fact situation of this case. No decree can be passed in view of plaintiff-appellant's own statement made before the trial court. In view of the aforesaid circumstances, no substantial question of law is involved in this Appeal, which is accordingly dismissed alongwith connected CMA(s).