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2019 DIGILAW 2670 (RAJ)

Vishnu Brahmin v. Harish Chandra

2019-10-14

PRAKASH GUPTA

body2019
JUDGMENT : Prakash Gupta, J. 1. This second appeal under Section 100 CPC has been filed by the appellant-defendant (hereinafter to be referred to as 'the defendant') against the judgment and decree dated 1.11.2007 passed by Addl. District Judge, Laxmangarh, Distt. Alwar (hereinafter referred to as 'the appellate court') in Civil Appeal No. 2/2005, whereby it dismissed the appeal and affirmed the judgment and decree dated 16.12.2004 passed by the Civil Judge (S.D.) Laxmangarh (Alwar) (hereinafter referred to as 'the Trial Court'). 2. Brief facts of the case are that the respondent-plaintiff (hereinafter referred to as 'the plaintiff') filed a suit against the defendants for recovery of possession of an open land (Baada), as described in para no. 1 of the plaint (hereinafter referred to as 'the disputed property'). 3. The defendants filed the written statement stating therein that the disputed property was purchased by the defendant no. 1 through agreement dated 12.1.1998 from Chhote Lal Jogi. 4. The Trial Court framed necessary issues and thereafter evidence was led by both the parties. After hearing the arguments, the learned trial court vide its judgment and decree dated 16.12.2004 decreed the plaintiff's suit. An appeal against the same was filed by the defendants. That appeal against the plaintiffs no. 2 to 4 was not pressed. However, the appeal against the plaintiff no. 1 was contested, but the same was dismissed by the appellate court vide judgment dated 1.11.2007. Hence, the present second appeal has been filed by the defendant. 5. Learned Sr. counsel for the defendant submitted that the learned courts below committed an illegality while not properly analyzing the evidence on record. Learned Sr. Counsel further submitted that the disputed property was not in the ownership and possession of plaintiff, rather the disputed property admeasuring 30 X 40' was purchased by the defendant through an agreement to sell executed by Chhotey Lal Jogi. Disputed property was sold to Chhotey Lal Jogi vide Sale deed dated 19.12.1974 executed by Tehsildar, Laxmangarh and since thereafter he had been in possession of the disputed property. Vendor Chhotey Lal Jogi executed an agreement dated 12.1.1998 and delivered possession to the defendant. Learned Sr. Counsel further submitted that on 27.9.2003, during his examination, the plaintiff raised objection regarding admissibility of the agreement dated 12.1.1998. Vendor Chhotey Lal Jogi executed an agreement dated 12.1.1998 and delivered possession to the defendant. Learned Sr. Counsel further submitted that on 27.9.2003, during his examination, the plaintiff raised objection regarding admissibility of the agreement dated 12.1.1998. The Trial Court vide its order dated 6.12.2003 overruled the plaintiff's objection and allowed to exhibit the agreement dated 12.1.1998 as Ex. -A/1. Thereafter again the plaintiff raised the objection by filing the application dated 13.12.2003 on the ground of agreement dated 12.1.1998 being insufficiently stamped and unregistered, whereupon the Trial Court vide its order dated 21.4.2004 held it to be inadmissible in evidence. The said order dated 21.4.2004 was challenged in First Appeal before the First Appellate Court, but the same was dismissed. Learned Sr. Counsel submits that once a document is exhibited, it cannot be held inadmissible in evidence. However, the learned courts below have utterly failed to consider this aspect of the matter and on this count, the impugned judgments and decree is liable to be quashed and set-aside. 6. In support of his contentions, learned Sr. Counsel placed reliance on the judgment in the case of Javer Chand And Others vs. Pukhraj Surana reported in 1961 AIR 1655. 7. Learned counsel for the plaintiff submitted that vide order dated 21.4.2004 passed by the Trial Court, the agreement dated 12.1.1998 was held to be inadmissible in evidence being unregistered and insufficiently stamped. Against the said order dated 21.4.2004, the defendant filed S.B. Civil Writ Petition No. 4598/2004 which was dismissed by the Coordinate Bench of this Court vide order dated 30.7.2004, which was not challenged furthermore. Thus, the order dated 21.4.2004 attained finality and therefore, cannot be questioned in this second appeal. 8. Having heard the learned counsel for the parties and carefully perused the relevant material on record, I am of the considered view that that since the agreement dated 12.1.1998 was held to be inadmissible by the Trial Court vide order dated 21.4.2004, against which the defendant filed S.B. Civil Writ Petition No. 4598/2004 which was dismissed by the Coordinate Bench of this Court vide order dated 30.7.2004, but the same was not challenged furthermore and the order dated 21.4.2004 passed by the Trial Court attained finality, thus, the agreement could not be read in evidence. On the basis of evidence emerging on record the Courts below found that the defendant did not prove the ownership and possession over the property in question. Furthermore, no defence was taken by the defendant in the written statement in respect of Section 53A of the Transfer of Property Act, 1882. 9. There is a concurrent finding of both the courts below, which are based on material available on record. A perusal of the impugned judgments of both the courts below would reveal that while recording their findings, both the courts below have properly appreciated the evidence available on record in accordance with law. Thus, the findings recorded by the learned courts below being findings of fact, require no interference by this Court in second appeal. This Court is of the view that no question of law, much less any substantial question of law is involved in the instant second appeal. Hence, the second appeal is liable to be dismissed which stands dismissed accordingly.