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2013 DIGILAW 400 (RAJ)

Shiv Ram v. Damodar

2013-02-15

PREM SHANKER ASOPA

body2013
JUDGMENT 1. - Heard learned counsel for the defendant appellant. 2. By this second appeal, the defendant-appellant has challenged the judgment and decree dated 28th March, 2012 passed by Additional District Judge No. 1, Deeg, District Bharatpur in Civil Regular Appeal No. 19 of 2010, Shivram v. Damodar dismissing the appeal filed by the defendant appellant and confirming the judgment and decree dated 16th March, 2010 passed by Addl. Civil Judge (Sr.Div.), Deeg in Civil Suit No. 51 of 1993, Damodar v. Shivram , whereby the civil suit filed by the plaintiff respondent seeking possession of and permanent injunction in relation to the land in dispute has been decreed against the defendant appellant, 3. Briefly, stated the facts of the case are that the plaintiff respondent filed a civil suit for permanent injunction against the defendant appellant with the averments that he is the owner of and having possession over the plot situated in Ward No. 9, Mohalla Gokulpura, Kaman, the boundaries of which were described in paragraph No. 2 of the plaint. It was also averred that earlier one Ram Singh tried to disturb his possession and dispossess him, therefore, he filed a civil suit in the court of Civil Judge, Bharatpur and during pendency of the aforesaid civil suit said Ram Singh sold the land to one Lallu vide registered sale deed dated 12th August, 1980 and Lallu raised unauthorised construction over some portion of the plot. Ultimately, on 16th August, 1982, the the basis of the compromise between the parties, the suit was decided in favour of the plaintiff and the sale deed dated 12th August, 1980 was declared to be void and the plaintiff withdrew the suit which was filed against Ram Singh. It was then averred that the defendant Shiv Ram, who has no right or title of the plot in dispute, is trying to dispossess him forcefully. Some earlier incidents and the proceedings taken by the plaintiff against the defendant were also mentioned and it was prayed that by permanent injunction the defendant be restrained from interfering in the his possession and also to restore his possession over the plot in dispute. 4. The defendant-appellant filed his written statement and denied the averments of the plaint. Some earlier incidents and the proceedings taken by the plaintiff against the defendant were also mentioned and it was prayed that by permanent injunction the defendant be restrained from interfering in the his possession and also to restore his possession over the plot in dispute. 4. The defendant-appellant filed his written statement and denied the averments of the plaint. It was specifically pleaded by the defendant-appellant that the land in dispute is owned by him and he is in possession of the land where he used to tie his animals and to put fire woods. It was then averred that he is not bond by the compromise by Ram Singh and Lallu as they had no connection with the land in dispute. 5. On the basis of the pleadings of the parties, following eight issues were framed:- 1- vk;k okni= ds en uEcj 2 esa of.kZr IykV oknh dh feyfd;r edcwft;r dk gS\ 2- vk;k fnukad 23-1-1984 dks nkSjkus nkok izfroknhx.k us fooknxzLr IykV ij tcju dCtk dj fy;k] ftls oknh okfil izkIr djus dk vf/kdkjh gSa\ 3- vk;k flfoy tt0 Hkjriqj dk fu.kZ; o fMdzh ls izfroknhx.k ikcan ugha gS\ 4- vk;k izfroknhx.k dk dCtk 12 lky ls vf/kd le; ls gksus ls ,MolZ its'ku ds vk/kkj ij fooknxzLr IykV ds Lokeh gS\ 5- vk;k izfroknhx.k fo'ks"k gtkZ ikus ds vf/kdkjh gSa\ 6- nknjlh\ 6. The plaintiff, in support of the averments of the plaint has produced PW.1 Manohar Lal, PW.2 Damodar Lal, PW.3 Ramesh Chand and PW.4 Nand Kishore and further produced documentary evidence from Ex. 1 to Ex.24. 7. The defendant-appellant Produced DW.1 Shivram, DW.2 Heera Lal, DW.3 Mahesh Chand, DW.4 Gopal Prasad and DW.5 Lallu. However, no documentary evidence was produced. 8. The trial court after considering the documentary as well as oral evidence decided issue No. 1 in favour of the plaintiff and issue Nos. 3 and 4 against the defendant. While deciding issue No. 1, the court below has given weightage to the sale-deed Ex.1 executed by Goshwami Shri Ghanshyam Lal in favour of the plaintiff which was not challenged by the defendant and further in judgment Ex.22, the District Judge while deciding Issue Nos. 1 and 2 has held that Goshwami Shri Ghanshyam Lal is the owner of th temple Shri Madam Mohan, Kaman and is having possession over the property in question. 1 and 2 has held that Goshwami Shri Ghanshyam Lal is the owner of th temple Shri Madam Mohan, Kaman and is having possession over the property in question. Issue No. 5 regarding entitlement of the defendant to get special cost, it was held that the defendant is not entitled to get special cost and ultimately the suit of the plaintiff-respondent for grant of permanent injunction was decreed in his favour with the direction that the defendant appellant shall hand over vacant possession of the disputed plot and house to the plaintiff within three months and he was further restrained from making any kind of interference in the use and occupation of the property. 9. Against this judgment and decree of the trial court, the defendant-appellant filed Civil Regular First Appeal before the District Judge, Bharatpur and the same was dismissed on 28th March, 2012 by the Additional District Judge No. 1, Deeg by confirming the findings of the trial court on issue Nos.1 and 2 in favour of the plaintiff and issue Nos.3 and 4 which were decided against the defendant appellant along with issue No. 5 and ultimately, judgment and decree of the trial court was upheld. 10. Submission of counsel for the appellant is that the plaintiff has not been able to produce the source of his title and from the evidence it appears that the land was not in his possession. Therefore, no permanent injunction could have been granted in favour of the plaintiff. Both the courts below have not properly considered this aspect of the matter and committed illegality and error in granting permanent injunction in favour of the plaintiff and upholding the same by the lower appellate court. 11. I have gone through the record of the second appeal and further considered the aforesaid submission of counsel for the appellant. 12. Both the courts below have not properly considered this aspect of the matter and committed illegality and error in granting permanent injunction in favour of the plaintiff and upholding the same by the lower appellate court. 11. I have gone through the record of the second appeal and further considered the aforesaid submission of counsel for the appellant. 12. Both the courts below have considered the fact that Ex.1 Sale-deed which has earlier been decided by the District Judge vide his judgment Ex.22 in favour of the plaintiff, was not challenged by the defendant appellant and further the plaintiff is the resident of Ward No. 3 and the disputed property is situated in Ward No. 9 as is evident from Ex.18 Voter list and further Ex.21,copy of statement of Shivram dated 24th January, 1983 given before the Munsif, Kaman in the case of Totaram v. Roshan Lal in which he himself has admitted that he is residing in Ward No. 3. Thus both the courts below have rightly came to the conclusion that the disputed property is in the ownership of plaintiff respondent who was in possession and further wrongfully dispossessed by the defendant during pendency of the civil suit . 13. In view of the above, the submissions of the counsel for the defendant appellant are contrary to the documentary evidence and the same have no force. 14. No substantial question of law is involved in the appeal. The second appeal has no force and the same is, dismissed.Appeal dismissed. *******