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2023 DIGILAW 478 (UTT)

Narayan Singh v. Madan Singh

2023-08-19

VIVEK BHARTI SHARMA

body2023
JUDGMENT : Vivek Bharti Sharma, J. Present second appeal is being preferred against the judgment and decree dated 26.09.2016 passed by the District Judge, Nainital in Civil Appeal No.36 of 2015, "Narayan Singh Vs. Madan Singh", whereby the judgment and decree dated 11.08.2015 passed by Civil Judge (S.D.), Nainital in Suit No.114 of 2011, dismissing the suit of the appellant/defendant, has been upheld. 2. Learned counsel for the appellant/plaintiff would submit that the learned trial court had framed 11 issues out of which issue Nos.1, 2 & 7 are important; that, the learned trial court and the First Appellant Court grossly erred in not deciding the issue No.1 in favour of the appellant/plaintiff despite the fact that the property situated in Khasra No.6575 (wholly) and Khasara No.6576 (in part) was purchased in the name of the appellant/plaintiff on 20.10.1986 by his father from Pooran Singh, the original tenure holder. He would further submit that while deciding issue No.1 the trial court erred in law in not considering the fact that the appellant/plaintiff is the owner and in possession of the disputed property i.e. the land situated in Khasara No.6575 (whole) and Khasara No.6576 (partly) and decided issue Nos.1, 2 & 3 together against him. 3. Learned counsel would further submit that the issue No.7 was framed as to whether the appellant/plaintiff and the respondent/defendants are the joint Khatedar in the disputed land and, if yes, whether one joint Khatedar of a Khata has any right to file a suit against the another joint Khatedar of the same Khata or not? He would further submit that the trial court and the First Appellate Court again erred in deciding this issue against the appellant/plaintiff and in favour of the respondent/defendants. 4. Learned senior counsel for the respondent/defendant would vehemently oppose the contention of the counsel for the appellant/plaintiff and would support the judgment of the trial court and the First Appellate Court with submissions that the appellant/plaintiff is not the owner of whole Khasra No.6575 because the total area of the land, as per his sale deed, in his name is, for the area of 0.424 hectare whereas the Khasara No.6576, as per the record, is of more than 0.760 hectare. He would further submit that meaning and notion of Khata is different from that of Khasara number; that, the Khata number keep on changing, however the Khasra number remains the same; that, in one Khata there can be many tenure holders, therefore, being joint Khatedar of one Khata does not mean that these two persons shall have any share in same Khasra number because in one Khata there can be many Khasras. 5. In light of the respective submissions of the learned counsel for the parties, this Court perused the record. 6. The learned trial court while deciding issue Nos.1, 2 and 3 observed that the appellant/plaintiff has utterly failed to show the specific boundaries in the plaint and even in the site plan attached therewith, therefore, the suit property is not identifiable; that, the appellant/plaintiff when pressed for the relief of injunction in respect of the suit property then the details of boundaries should be very clear and identifiable so that there is no doubt to identify the suit property. 7. The learned trial court further observed that on the basis of the site plain attached, the suit property is not identifiable; therefore, it cannot be said that where the Khasra No.6575 and Khasra No.6576, which the appellant/plaintiff alleges to have purchased, is situated. It is further observed by the trial court that the appellant/plaintiff even did not make any application to get the suit property demarcated so that it could have been established where the Khasra No.6575 and 6576 were situated and what other khasra numbers or property situate in its North, East, West and South direction; therefore, it cannot be said that the relief of permanent injunction prayed for is in respect of the land which he alleges to have been purchased in his name. 8. This Court perused the plaint and the site plan (attached with the memo of appeal). The site plan shows that Khasra No.6576 is circumscribed by v] c] l] n and Khasra No.6575 is separate; however, this site plan does not show as to what lies in the East, West, South and North of these Khasras. 9. On query of the Court, even counsel for the appellant/plaintiff admitted that it is not described in the site plan that what lies in the East, West, South and North of these Khasras. 9. On query of the Court, even counsel for the appellant/plaintiff admitted that it is not described in the site plan that what lies in the East, West, South and North of these Khasras. In considered view of this Court, learned trial court is justified in observing that the property of Khasra Nos.6575 and 6576 is not identifiable in connection with the property the appellant/plaintiff. 10. Learned trial court is again right in observing that by the plaint and the site plan it cannot be said that the appellant/plaintiff is praying for the relief of permanent injunction in respect of the same land, which he alleges to have purchased in his and his brother's name or some other land which respondent/defendants dispute and claim to be the rightful owner and in possession. 11. In respect of issue No.7, it is admitted during the course of arguments that Khata and Khasra number are different and Khata Number keep on changing and there can be many Khasras in one Khata; therefore, being the same joint Khatedar does not mean that the appellant/plaintiff and the respondent/defendants are the joint owner of the same Khasras; i.e. to say, they may be the owner and in possession of different Khasra Numbers of the same Khata. It is further pertinent to observe that whether two persons are the joint khatedar or not can be decided on the basis of the document, but the relief for the permanent injunction can be granted only if the property is clearly identifiable so that there remains to be no dispute after grant of relief of the permanent injunction. 12. In view of the above, this Court is of the considered view that no substantial question of law arises for consideration in the present appeal. It is the question of facts only, which have been correctly decided by the trial court and the First Appellate Court. Accordingly the instant second appeal is dismissed in limine.