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2014 DIGILAW 213 (HP)

Roshan Lal v. Ratto alias Rattan Chand

2014-03-18

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, Judge. This regular second appeal is confined to the claim of the plaintiff- respondent qua house measuring 27’ x 10’ double storeyed having slate roof consisting of three rooms in the lower storey and three rooms in the upper storey situate in khata No. 198 min, khatauni No. 412 min, khasra Nos. 1753 and 1754 situated in Mahal Bhadgwar, Tehsil Palampur, District Kangra. The other reliefs have been denied by the learned trial court as also the first appellate court and have since attained finality. 2. The appeal was admitted on 5.9.2002, on the following substantial questions of law:- 1. Whether the first appellate court erred in holding that the plaintiff was owner in possession of the suit land when the suit property had been partitioned in 1986? 2. Whether the findings of the first appellate court are based on misreading of the evidence and on the evidence which was not on record? 3. Whether the findings of the first appellate court are vitiated by the non-consideration of the admissible evidence on record which, if considered, would have led to the opposite result? 3. I have heard the learned counsel for the parties and have gone through the record. Since all the substantial questions of law are inter-related, I propose to decide these questions through common reasoning. 4. Before adverting to the other evidence on record, it would be relevant to notice here that the house in fact had been built by one Sohan Lal, the father of the parties on the land belonging to Jai Chand, who filed a suit against Sohan Lal in the year 1946 for possession of the land. The suit was decreed in the year 1947 and the court passed the decree for possession in favour of Jai Chand and against the defendants which included Sohan Lal, Ratti Ram, Ram Ditta as defendants No. 1 to 3. The defendants No. 2 and 3 did not contest the suit. In terms of the decree, defendant Sohan Lal was given three months’ time from the date of decree to remove his material from the land failing which the plaintiff was to be entitled to obtain the possession of the land by demolition of the house and structure of defendant in accordance with law. This judgement is Ex. D-3. In terms of the decree, defendant Sohan Lal was given three months’ time from the date of decree to remove his material from the land failing which the plaintiff was to be entitled to obtain the possession of the land by demolition of the house and structure of defendant in accordance with law. This judgement is Ex. D-3. Sohan Lal defendant is stated to have not removed the house as well as the material from the land within the stipulated period in order to save the house of being demolished, as the plaintiff had claimed to have purchased the same vide sale deed Ex. PW 3/A. These facts in fact find mentioned in the sale deed Ex. PW 3/A. After this, the land on which the house existed was purchased by the present defendant through sale deed Ex. P-3 in the year 1956 and thus the plaintiff, who had purchased the material of the house from Jai Chand, also became co-owner of the land underneath it with his brothers defendants. 5. Plaintiff had claimed to be the owner and in possession of the house (aforesaid) and adduced oral as well as documentary evidence. The plaintiff had stated to have purchased the house from one Jai Chand in the year 1954 to the exclusion of his brothers, who had no share in it. The plaintiff appeared as PW 1 and stated how and in what manner he had purchased the house. PW 3 Dina Nath is the deed-writer, who proved on record the sale deed in between the plaintiff and Jai Chand, which is Ex. PW 1/A. He has stated that he had scribed the sale deed at the instance of Jai Chand in presence of Jawahar, Shiv Chran, Lambardar and Rattan Chand. This related to the purchase of material of the house. The house was 27’ x 22’, then corrected 27’ x 10’. It was sold to Rattan Chand. 6. In view of these facts, the plaintiff- respondent can safely be said to be owner in possession of the house as the defendants- appellants have failed to prove that they are also in possession of this house. Apart from it, there was no other evidence that father of the parties or even the defendants themselves had contributed for the purchase of the house. 7. Apart from it, there was no other evidence that father of the parties or even the defendants themselves had contributed for the purchase of the house. 7. Therefore, in view of above, the learned lower appellate court has rightly decreed the suit of the plaintiff- respondent declaring him to be owner in possession of the house measuring 27’ x 10’ double storeyed having slate roof consisting of three rooms in the lower storey and three rooms in the upper storey situate in khata No. 198 min, khatauni No. 412 min, khasra Nos. 1753 and 1754 situated in Mahal Bhadgwar, Tehsil Palampur, District Kangra. 8. The learned counsel for the appellants- defendants has made a faint attempt to question this decree on the ground that entire property as detailed in para-1 of the plaint has been decreed in favour of the plaintiff, which also included the land in dispute. I am afraid that this contention has been stated to be rejected since the decree passed by the learned lower appellate court is absolutely clear and unambiguous declaring the plaintiff to be owner in possession only of house measuring 27’ x 10’ double storeyed having slate roof consisting of three rooms in the lower storey and three rooms in the upper storey situate in khata No. 198 min, khatauni No. 412 min, khasra Nos. 1753 and 1754 situated in Mahal Bhadgwar, Tehsil Palampur, District Kangra. 9. The findings recorded by the learned first appellate court are based on evidence and material on record and, therefore, in my opinion cannot be lightly interfered with in the present appeal. [See: A.N. Kapoor v. Pushpa Talwar (1992) 2 SCC 80 : AIR 1992 SC 799 ; Guro v. Atma Singh (1992) 2 SCC 507 ; National Insurance Co. Ltd. vs. State Bank of India (1993) 2 SCC 673 ; Bhagwan Kaur v. Kartar Kaur (1994) 5 SCC 135 ; Ram Kumar v. Thawar Das, AIR 1999 SC 3248 ; Pathan Murtazakhan v. Dadamukhan Pathan, 1993 Supp (2) SCC 518 : AIR 1993 SC 1750 ; Shankareppa v. Mutanki, (2000) 9 SCC 254 ; Ramaswamy vs. Mathayan, 1992 Supp. (1) SCC 712 : AIR 1992 SC 115 . 10. In view of my above findings, the substantial questions of law, as framed above, are answered accordingly. 11. No other point has been urged. 12. (1) SCC 712 : AIR 1992 SC 115 . 10. In view of my above findings, the substantial questions of law, as framed above, are answered accordingly. 11. No other point has been urged. 12. In view of my above discussion, appeal merits dismissal and is accordingly dismissed with no order as to costs.