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2019 DIGILAW 2780 (RAJ)

Ramjeevan Gautam Jattav v. Sumandevi Kardam

2019-11-01

PRAKASH GUPTA

body2019
JUDGMENT : Prakash Gupta, J. 1. This second appeal has been filed under Section 100 CPC against the judgment and decree dated 12.3.2014 passed by Addl. District Judge No.2, Alwar (hereinafter referred to as 'the appellate court') in Appeal No.131/2009, whereby the appeal filed by the appellant-plaintiff (hereinafter referred to as 'the plaintiff) has been dismissed and the judgment and decree dated 20.5.2009 passed by Addl. Civil Judge (Jr. Division) & Judicial Magistrate No.1, Alwar (hereinafter referred to as 'the trial court') has been affirmed. 2. Facts of the case are that the plaintiff filed a suit against the respondents-defendants (hereinafter referred to as 'the defendants') for permanent injunction, which was disposed of by the Trial court vide its judgment dated 8.9.2006. An appeal was filed there against before the Appellate Court. The Appellate Court vide its judgment dated 18.11.2006 framed an additional issue and the matter was remanded to the Trial Court with the direction to decide the matter afresh. It was submitted in the plaint that the plaintiff is the khatedar tenant of 2/3 part of the land of Khasra No. 272 measuring 3 Bigha 19 Biswa situated in village Daudpur, Distt. Alwar. The disputed land was stated to be purchased by the plaintiff by registered sale deed dated 20.4.1981 from Khawani, Ram Bux. It was also stated that the defendants wanted to encroach over 10 X 30 ft. western side of the aforesaid piece of land and wanted to raise construction. In this way, the suit was filed for permanent injunction. 3. The defendants filed the written statement mentioning therein that the plaintiff is not in possession over the land in question. Conversely in the disputed land, residential plots were constructed and sold after the site plan of which approved by the UIT, Alwar. It was also stated that over the residential plots, the purchasers are in possession and the plaintiff is not in possession. The defendants also stated to have purchased the land in question by way of agreement to sell and to be in possession over there since then. They also stated that the entire construction was completed before 21.5.1995. 4. The Trial Court framed 3 issues. One additional issue with regard to jurisdiction of Civil Court was also framed by the Appellate Court vide is judgment dated 18.11.2006. The Trial Court vide its judgment dated 20.5.2009 dismissed the plaintiff's suit. They also stated that the entire construction was completed before 21.5.1995. 4. The Trial Court framed 3 issues. One additional issue with regard to jurisdiction of Civil Court was also framed by the Appellate Court vide is judgment dated 18.11.2006. The Trial Court vide its judgment dated 20.5.2009 dismissed the plaintiff's suit. The plaintiff filed the appeal there against, which was also dismissed vide judgment dated 12.3.2014. 5. Hence, the present Civil Second Appeal has been filed. 6. Learned counsel for the plaintiff submitted that vide registered sale deed dated 20.4.1981, plaintiff purchased the disputed land from Ram Bux, therefore he was the true owner of the land in question. He has further submitted that the plaintiff submitted the map alongwith the plaint, which was duly proved by the plaintiff. He has further submitted that the plaintiff never delivered the possession of the disputed land to the defendants. In this way, the plaintiff was in possession of the land in question. However, the learned courts below have utterly failed to consider this aspect of the matter. Therefore, the impugned judgment and decree deserve to be quashed and set-aside. 7. Per Contra, learned counsel for the defendants supported the impugned judgments and decree and prayed that the appeal be dismissed summarily. 8. Heard. Considered. 9. So far as the additional issue framed by the appellate court with regard to jurisdiction of the Trial Court was concerned, the Trial Court found that the land in question fell within residential area. Furthermore near the disputed land, UIT constructed the road and the defendants were also given the notice by UIT, Alwar. In this view of the matter, Trial Court observed that it could not be said that the Civil Court has no jurisdiction to hear the suit. 10. So far as the possession was concerned, it was admitted by the plaintiff that at the time when the suit was filed, neither he was in possession over the suit property nor the defendants were in possession. In my view, a suit for injunction simplicitor without possession is not maintainable. 11. In the suit filed by the plaintiff, measurement of the suit property was not mentioned. He utterly failed to disclose in the suit as to what was situated around the suit property and in which direction whose property was situated. He utterly failed to disclose the quadrilateral directions of the suit property. 11. In the suit filed by the plaintiff, measurement of the suit property was not mentioned. He utterly failed to disclose in the suit as to what was situated around the suit property and in which direction whose property was situated. He utterly failed to disclose the quadrilateral directions of the suit property. The documents produced by the plaintiff with regard to his ownership were of no help as he also could not show as to what was the position of the disputed land. 12. It is relevant to mention here that when the suit was pending adjudication before the Revenue Court, a site commissioner was appointed, who submitted his report, which was exhibited. According to the Site Commissioner's report, Suraj Mai S/o. Phool Singh was having the possession over the suit property. In this view of the matter, the plaintiff was not in possession of the suit property. In absence of possession, suit for injunction simplicitor was not maintainable. 13. From Ex. A/2, it was evident that on 19.6.1981, plaintiff sold a land admeasuring 40 X 55 ft. to Suman Devi by way of registered sale deed in a sale consideration of Rs. 3000/- and possession was handed over to Suman Devi. It was submitted that earlier the land was admeasuring 244.44 Sq. Yards which was subsequently reduced to 158.06 Sq. Yards. In this connection, the plaintiff submitted that he did not sell the piece of land admeasuring 10 X 30 sq. yards to Suman Devi, but from Ex. A-3, no land was shown vacant in between the corner of the road and the land purchased by Suman Devi. In this way, the plaintiff has utterly failed to make out a case in his favour. 14. 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.