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2017 DIGILAW 324 (UTT)

RAJEY SINGH v. DARSHAN SINGH

2017-06-19

LOK PAL SINGH

body2017
JUDGMENT Hon’ble Lok Pal Singh, J. Present second appeal has been preferred by the appellant against the judgment and decree dated 31.05.2014 passed by Civil Judge (J.D.), Pauri Garhwal, whereby the trial court has decreed the plaintiff’s suit as well as against the judgment and order dated 21.03.2017 passed by District Judge, Pauri Garhwal in Civil Appeal No.52 of 2014, whereby the first appellate court has upheld the judgment and decree of the trial court. 2. Brief facts of the case are that plaintiff Darshan Singh (the respondent herein) filed a suit against the defendants (the appellants herein) for relief of possession in the court of Civil Judge, Junior Division, Pauri Garhwal, stating therein that in the year 1979, the Government had allotted some land to the Ex Army persons for the residential purposes and issued the Patta accordingly. In this scheme, being a retired army person, the Government also allotted a Patta to the plaintiff in regard to land bearing Khata No.3538 Area 0.005 hectare land vide grant no.60/72- 78-39 dated 27.5.1979 to construct residential building. After sanction, the plaintiff came in the possession of the disputed land and his name is recorded in Non Z.A. Khatoni. Due to some personal and domestic problem, the plaintiff could not construct the building over the allotted land but he covered the allotted land all around. After long time, when the position of the plaintiff became sound, he started construction on the disputed land on 17.03.2004. On 22.03.2004 the defendants came on the disputed property and tried to stop the construction and forcibly took over the possession from the plaintiff. The defendants contested the suit and filed their written statement. In the written statement, the defendants pleaded that the plaintiff was never in possession over the disputed land nor he is legally owner of the disputed land. The disputed property was attached u/s 145 Cr.P.C. and considering the possession of defendant, it was released in favour of the defendants. 3. The defendants contested the suit and filed their written statement. In the written statement, the defendants pleaded that the plaintiff was never in possession over the disputed land nor he is legally owner of the disputed land. The disputed property was attached u/s 145 Cr.P.C. and considering the possession of defendant, it was released in favour of the defendants. 3. On the pleading of the parties, learned trial court framed as many as six issues, which are as under: i) Whether, in the year 1979, the District Magistrate, Pauri Garhwal has allotted a Patta to the plaintiff, being an Ex-Soldier, in regard to land bearing Khata No.3538 Area 0.005 hectare land of Revenue Village Patti Choprakot Tehsil Thailsain, District Pauri Garhwal, vide grant no.60/72-78-39 dated 27.5.1979 to construct residential building, as stated in the plaint? If so, its effect? ii) Whether the plaintiff was in possession over the land in dispute and the defendants illegally dispossessed the plaintiff from the disputed land by stopping him from making construction, as stated in the plaint? If so, its effect? iii) Whether the order passed by the S.D.M. between the parties dated 16.5.2005 has become final as alleged in the written statement? iv) Whether the suit is undervalued and the court fees paid on it is insufficient? v) Whether the suit is time barred? vi) Whether the suit is barred by principle of estoppel ? vii) To what relief, the plaintiff is entitled for, if any? 4. Both the parties led oral as well as documentary evidence. After recording the evidence and hearing both the parties, the trial court, vide judgment and order dated 31.05.2014, decreed the suit of the plaintiff and directed the defendants to vacate the possession of disputed land within one month and to hand over the peaceful possession of the same to the plaintiff. On issue no.1, the trial court recorded a finding that the disputed land was allotted to the plaintiff for construction of residential purpose vide lease deed dated 27.05.1979. On issue no.2, the trial court recorded a finding that the defendants had forcibly taken possession of the disputed land from the plaintiff and dispossessed him. Issue no.3 was decided in favour of the defendants but it was observed that the order passed in the proceedings under Section 145 Cr.P.C. does not adversely affect the right of the parties in the present suit. Issue no.3 was decided in favour of the defendants but it was observed that the order passed in the proceedings under Section 145 Cr.P.C. does not adversely affect the right of the parties in the present suit. On issue no.5, trial court held that the suit has been filed within limitation period. On issue no.6, trial court recorded a finding that the suit is not barred by principle of estoppel. Feeling aggrieved by the judgment and decree dated 31.05.2014, the defendants preferred an appeal before the District Judge, Pauri Garhwal, which was registered as Civil Appeal No.5 of 2014. Lower appellate court, afterhearing the parties and upon perusal of record, framed three points for determination as required under Order 41 Rule 31 of the C.P.C., which are as follows: (i) Whether the State Government has issued a Patta in favour of the plaintiff/respondent vide grant No.60/72-78-79 dated 27.5.1979 in regard to Government land Khata No.3538 area 0.005 hectare land for the construction of residential accommodation and since then plaintiff is in possession of the disputed land and his name is recorded in revenue record/Khatoni as owner? (ii) Whether the defendant/appellant is the owner and is in possession of the disputed land by way of adverse possession? (iii) Whether the findings of the trial court are perverse? 5. After recording its findings on each point for determination and relying upon a judgment of Hon’ble Apex Court, the first appellate court dismissed the appeal, vide its judgment and decree dated 21.03.2017. 6. Learned counsel for the appellantsdefendants submits that the learned first appellate court did not record any findings on the issues framed by the trial court while it was incumbent upon thecourt to record its independent findings on each andevery issue framed by the trial court. He further submits that the judgment and decree passed by both the courts below are perverse in nature and against the law and are liable to be set aside. 7. I have heard learned counsel for the appellants and perused the record. 8. The first appellate court has framed three points for determination and has recorded its findings on every point. Thus, the submission of counsel for the appellants that the first appellate court has notdischarged its duties in accordance with law ismisconceived. Both the Courts below have recorded concurrent finding of facts, after due appraisal of evidence on record. 8. The first appellate court has framed three points for determination and has recorded its findings on every point. Thus, the submission of counsel for the appellants that the first appellate court has notdischarged its duties in accordance with law ismisconceived. Both the Courts below have recorded concurrent finding of facts, after due appraisal of evidence on record. Though, substantial questions of law have been framed in the memo of appeal but none of them goes to the root of the case. No substantial question of law arises for consideration in this appeal. 9. In view of above discussion, I find no merit in this second appeal. The appeal is, accordingly, dismissed. No order as to costs.