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2017 DIGILAW 925 (RAJ)

Yusuf Ali Khan v. Vimal Kumar

2017-04-07

K.S.JHAVERI, VIJAY KUMAR VYAS

body2017
JUDGMENT : 1. By way of this appeal, the appellant has challenged the judgment and order of the learned Single Judge whereby he has dismissed the petition. 2. This matter has a chequered history. The present appellant has challenged the judgment and order of the first authority which decided the matter after remand order passed by this Court in Writ Petition bearing No. 1866/75 decided on 9th July, 1984 wherein speaking for the Court, the learned Single Judge observed as under:- "I have given a considered thought to the rival submissions made by learned counsel for the parties. I, set-aside the judgments Ex. 2 and Ex. 3 dated 21.05.1969 and 20.10.1975 respectively passed by the Revenue Appellate Authority and the Board of Revenue respectively. I hold that the document Ex. D.1 presented by the defendant in the trial court is admissible in evidence for collateral purpose of showing the nature and character of the possession of the defendant (present petitioner). The case is sent back to the Revenue Appellate Authority for disposal according to law and after appreciating the evidence." 3. After remand, the authority while dealing with the case of the appellant after considering all the witnesses produced by the present appellant as well as the defendant has given the finding as under: ^^rgdhdkr ls oknh dk nkok lkfcr ugha ik;k tkrkA fygktk vnkyr gqDe nsrh gS fd nkok oknh e; [kpkZ [kkfjt gks gqDe lquk;k x;k rk0 18-03-1966** 4. After considering the material on record, the Court observed that the present appellant original plaintiff failed to prove his case and has dismissed the suit. The same was confirmed by the appellate authority on 30.10.1990 and revenue appellate authority vide order dated 16.1.1995. In view thereof, the learned Single Judge while considering the matter dismissed the writ petition observing as under:- "Having heard rival submissions of the respective parties and perused the orders impugned passed by the Courts below and the judgments referred by the respective parties, all the courts below have considered the document in question and found that the possession was handed over in favour of the respondents and receipt was executed by the petitioner of Rs. 1025/- and on the basis of the document executed and consideration which was received by the petitioner plaintiff, the suit of the petitioner was dismissed by the S.D.O. and upheld by the Revenue Appellate Authority and Board of Revenue and on the basis of evidence and document it was fully proved that the land in question was sold to the respondents and possession was handed over to them and therefore, only on the basis that the document is not registered, the petitioner is not able to make out any case that the land is not sold to the respondents and the respondents are only trespasser. Thus, the judgments referred by the petitioner are not applicable to the facts and circumstances of the present case. As such, the orders impugned do not require any interference by this court." 5. Counsel for the appellant contended that the document which is sought to be relied upon was not registered one and the learned Single Judge while remanding the matter has only considered it for collateral purpose and held that the document will only show the nature and character of the possession of the defendant. The document was not a sale deed inspite of that all the authorities have considered against the present appellants. 6. We have heard the learned counsel for the appellants. 7. While considering the case, the first authority has in detail considered PW/1 to PW/3 and also defence witnesses which are produced by the defendant before the learned trial Court DW/1 to DW/9 and taking into consideration the same has given finding which are against the present appellants. 8. In view of the concurrent findings of all the authorities and observations of all the authorities, we are in complete agreement with the finding recorded by the learned Single Judge and the first appellate authority. 9. The contention regarding hand writing expert, the contention has been raised for the first time before the first appellate authority thus, it is an after-thought and the same was rightly rejected by the learned revenue authority. 10. In our opinion, this appeal is nothing but an abuse of process of the Court by dragging the proceedings with a view to harass the other side. 11. Thus, in the circumstances, cost is required to be imposed. In our opinion, it will be just and proper to impose a cost of Rs. 5,000/- (Rs. 10. In our opinion, this appeal is nothing but an abuse of process of the Court by dragging the proceedings with a view to harass the other side. 11. Thus, in the circumstances, cost is required to be imposed. In our opinion, it will be just and proper to impose a cost of Rs. 5,000/- (Rs. Five thousand) upon the appellants to be paid to the respondents. 12. The appeal stands accordingly dismissed.