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2019 DIGILAW 661 (HP)

Kamla Devi v. Madan Singh

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the appellants/plaintiffs, against, the concurrently recorded verdicts, initially by the learned trial Court, and, subsequently by the learned First Appellate Court, respectively, upon Civil Suit RBT No. 23/16/98, and, upon Civil Appeal No. 99 of 2016, wherethrough (s), the plaintiffs' suit for rendition of a decree for possession, vis-a-vis, the suit khasra number (s) hence stood dismissed. 2. Briefly stated the facts of the case are that the suit land as detailed in the plaint, is, owned and possessed by the plaintiffs, and, the defendant is very headstrong person, while plaintiff No.1 is a widow, and, plaintiff No.2 is a minor. The defendant has taken illegal possession of the suit land marked by letters ABCDEF taking the benefit of the helplessness of the plaintiffs for the last two months. The defendant has absolutely no right or connection with the suit land and their possession is that of a trespasser. The defendants wsere requested to handover the vacant possession of the suit land by they have refused to do so. Hence the suit. 3. The defendant contested the suit and filed written statement, wherein, he has taken preliminary objections, qua, maintainability, as the plaintiffs are neither owners or in possession of the suit land, cause of action, estoppel etc. It is submitted that the partition took place inter se the parties in partition proceedings bearing No. 76/T/97, decided on 7.8.1997, titled as Surjit Singh vs. Kamla Devi by Assistant Collector 1st Grade, Una, in respect of Khewat No.188 and has not come to the court with clean hands. It is submitted that land measuring 0-05-73 hectares bearing Khasra No. 427 was previously owned and possessed by plaintiffs and deceased Surjit Singh. The plaintiffs acquired the land to the extent of 0-10 marlas given by Amin Chand, the father-in-law of plaintiff No.1 and grand father of plaintiff No.2 through gift deed registered in the office of Sub Registrar, Una. In this way, plaintiffs became joint owner in possession in Khewat No.188 min. Said Surjit Singh filed application for partition of land before the Assistant Collector 1st Grade, Una on 6.10.1994 and Khewat No.188 min was partitioned by the orders of the Assistant Collector 1st Grade, Una, on 7.8.1997. In this way, plaintiffs became joint owner in possession in Khewat No.188 min. Said Surjit Singh filed application for partition of land before the Assistant Collector 1st Grade, Una on 6.10.1994 and Khewat No.188 min was partitioned by the orders of the Assistant Collector 1st Grade, Una, on 7.8.1997. The separate Kuras of the parties were carved out in partition proceedings and in the partition, Assistant Collector 1st Grade, Una, had given excess land to the plaintiffs more than their share. It is averred that land measuring 0-03- 52 hectares by carving out separate Khasra No.427/2/2 was allotted to Surjit Singh and land measuring 0-02-21 hectares by carving out separate Khasra No.427/1 and 427/2/1 was allotted to plaintiffs by Assistant Collector 1st Grade in case No.76/T/97 titled as Surjit Singh vs. Kamla Devi. After final partition, said Surjit Singh applied for possession of the same before the Assistant Collector 1st Grade, and, possession was delivered on 29.9.1997 on the spot in the presence of the plaintiffs to deceased Surjit Singh by the revenue authorities. It is averred that the plaintiffs came in possession over khasra No. 427/a and 427/2 whereas said Surjit Singh came in possession as owner of Khasra No. 427/2/2/. Further it is averred that answering defendants purchased land measuring 0-03-52 hectares bearing Khasra No.427/2//2/ from Surjit Singh through registered sale deed duly registered in the office of Sub Registrar, Una, and, the answering defendant is in possession of the above mentioned land on the basis of sale deed on spot. The land marked by letters ABCDEF is not part of Khasra No. 427/1 and 427/2/1 whereas the same is part and parcel of Khasra No. 427/2/2/ which is owned and possessed by the defendant. It is further submitted that there exists five trees which are planted by defendant and same is managed and enjoyed by the defendant after the purchase of land and plaintiffs have nothing to do with it. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is entitled for the relief of possession as alleged? OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Whether the plaintiff has no cause of action to file the suit?OPD. 4. Whether the plaintiff is estopped from filing the suit by her own acts, deed and conduct?OPD. 5. Relief. Whether the plaintiff is entitled for the relief of possession as alleged? OPP. 2. Whether the suit is not maintainable in the present form?OPD. 3. Whether the plaintiff has no cause of action to file the suit?OPD. 4. Whether the plaintiff is estopped from filing the suit by her own acts, deed and conduct?OPD. 5. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the plaintiffs' suit. In an appeal, preferred therefrom, by, the plaintiffs/appellants herein before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 6. Now the plaintiffs/appellant (s) herein, have instituted the instant Regular Second Appeal, before, this Court, wherein, they hence assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. 7. The dismissal of the plaintiff's suit, was, anvilled upon a report of the local commissioner, embodied in Ex.OW1/A, prepared by Shri Rajinder Kumar, Naib Tehsildar. The author of the demarcation report, had stepped into the witness box, and, had successfully withstood, the rigor of an exacting cross-examination, in course whereof, suggestions were meted to him, for hence belying the tenacity of the report prepared by him. Suggestions whereof, (a) appertain to his not fixing three permanent points, prior to his preceding to hold the relevant demarcation, (b) his not adopting, the, triangular system; (c) his not carrying along with him, to the relevant site, the latha, and, the musabi. Reiteratedly, all the afore suggestions were denied by him. Moreover, he had also testified on oath, that the fixation of permanent points, being, a sequel, to his obtaining the consent, of the contesting litigant (s), and, has further stated, that, he had with the help of jareb, verified every point, and, at the afore stage, the plaintiff had reared no objection, (i) thereupon, it is to be concluded qua the demarcation report borne in Ex.OW1/A standing proven, to be a sequel, of, efficacious conducting, of, demarcation, by the demarcating officer, and, also obviously, it bearing concurrence with the relevant rules. 8. 8. Be that as it may, the learned counsel appearing for the aggrieved plaintiff, has contended with much vigour before this Court, that mere rendition, of, a testification on oath, by the demarcating officer concerned, (i) that at the relevant time he was carrying along with him the apposite musabi, rather not carrying any tenacity, given, his, admitting in his cross-examination, that, he has not appended, the musabi, with the relevant report. However, the afore contention pales into insignificance, as, a wholesome reading of the testification, rendered by OW-1 (ii) rather unveils, that, a suggestion, hence, was put to him, by the counsel for the plaintiff, upon, the latter subjecting him, to cross-examination, with, a clear echoing therein, qua his not applying the relevant “paimana”, upon, the musabi. The afore suggestion, however, stood denied by him. The afore suggestion, couched in an affirmative phraseology, does render open an inference, qua the plaintiffs, acquiescing qua the demarcating officer rather at the relevant site, and, importantly in contemporaneity with his holding, the, relevant demarcation proceedings, his hence carrying alongwith him, the, musabi, (iii) dehors his not appending, the, musabi with his report, thereupon, no capitalization can be derived by the plaintiffs, that, he omitted, to, at the relevant time, hence, carry the musabi, appertaining to the suit khasra number. 9. The above discussion, unfolds, that the conclusions as arrived by both the learned Courts below, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Consequently, no substantial question of law much less a substantial question of law hence arises for determination in this appeal. 10. In view of the above discussion, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the judgments and decrees impugned before this Court are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.