AT CHANDIGARH v. Mangu Ram & Anr.

CORAM: HON'BLE MR.JUSTICE MAHESH GROVER ....

1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Mahesh Grover,J. .... Seven of the defendants have filed the instant appeal challenging the judgment & decree dated 8.2.1984 passed by the Additional District Judge, Jind (hereinafter described as `the first appellate Court') whereby the judgment & decree dated 26.9.1981 of the Sub Judge Ist Class, Narwana (referred to hereinafter as `the trial Court') were set aside and a decree for possession with respect to the suit land was passed in favour of the plaintiff. A suit for possession and mandatory injunction was filed by the plaintiff-Mangu alleging that he was owner of the disputed land marked with letters ABCDEFH as shown in the site plan attached with the plaint since the time of his grand-father because the proprietors of the village had R.S.A.No.1887 of 1984 -2- .... settled his ancestors for preparing agricultural implements etc.; that a house and a garhi had been constructed by him on the land in dispute; that land shown in red colour measuring 102 square yards was left by him for tethering cattle, parking carts and for other miscellaneous purposes;that a kikar tree was also planted by him in that vacant land; that in the year 1975, a suit for permanent injunction was filed by Bir Singh-defendant with regard to the land in dispute and some other properties, whereas he had also filed a suit for permanent injunction against Bir Singh etc.; that both these suits were consolidated and vide judgment dated 6.4.1978, the suit of Bir Singh was dismissed, while the suit of the plaintiff was decreed; that the appeal filed by Bir Singh against the said judgment was dismissed by the Additional District Judge, Jind; and that defendant no.1-Teja Singh, who is not resident of the village, instigated defendant-Bir Singh etc. to illegally occupy the disputed land; that these defendants have taken possession of the disputed land and have forcibly constructed a kucha kotha thereon about ten days back. The present appellants, upon notice, appeared and filed their written statement contesting the suit. They disputed the identity of the suit land. They further pleaded that the earlier suit was for injunction and the instant suit is for possession and both these prayers cannot be reconciled for the reason that if the earlier suit was for injunction, then it implied that the plaintiff was in possession and he has nowhere pleaded in the instant suit as to when he was dispossessed and as to why the suit for possession was necessitated. R.S.A.No.1887 of 1984 -3- .... The parties went to trial on the following issues:-

1. Whether the plaintiff is owner of the suit property?OPP

2. Whether the defendants have constructed a Kotha on the suit land as alleged?OPP

3. Whether the kotha in question has been constructed about 20 years ago?OPD

4. Relief. The trial Court, after appraisal of the evidence on record, concluded that the identity of the property in dispute was not established and, therefore, dismissed the suit. In appeal, the findings of the trial Court were reversed by the first appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellants has contended that the plaintiff has not pleaded as to when he was dispossessed. No date has been mentioned and that issue nos. 2 & 3 which were decided in favour of the appellants, the findings recorded under them were never questioned by him and as a consequence thereof, it has to be held that the appellants had raised construction in the suit property which was to the knowledge of the plaintiff, but he never chose to resist such an attempt by the appellants. He further contended that in the injunction suit and in the suit for possession, the identity of the suit property does not tally and, therefore, the findings in the earlier suit regarding ownership, have no bearing on the facts of the instant case. R.S.A.No.1887 of 1984 -4- .... On the other hand, learned counsel for the plaintiff has referred to the findings of the first appellate Court to say that the identity of the suit property which was demarcated, was clearly established. After hearing the learned counsel for the parties and perusing the impugned judgments, as also the record, I am of the opinion that the contentions raised by the learned counsel for the appellants are misplaced. The first appellate Court closely compared the documents on record and came to the conclusion that the identity of the suit property was established. Exhibit P1 is the site plan attached with the plaint in the instant proceedings, whereas Exhibit P2 is the copy of the plaint which was filed by defendant-Bir Singh in the year 1975 in which the boundaries of the property were detailed, whereas Exhibit P4 is the site plan which was attached by the plaintiff with the earlier suit also filed by him in the year

1975. A perusal of these three documents shows that the boundaries on north and east shown in Exhibit P4 clearly tally with the boundaries given in Exhibit P1. The only dispute is that in Exhibit P1, on south is shown the house of Mange and on west the Patwarkhana, while in Exhibit P4, Patwarkhana is shown towards south and street towards the west. When Exhibit P1 is compared with Exhibit P4, then it is found that Exhibit P4 is of a bigger area than now in dispute. In Exhibit P1, the bigger area is also depicted in which after Patwarkhana is shown the street towards west and towards south turns out to the Patwarkhana abutting the house of the plaintiff. Therefore, this shows that three boundaries as given in Exhibit P4 clearly tally with the three boundaries given in Exhibit P1 and as such, the R.S.A.No.1887 of 1984 -5- .... identity of the disputed land is held to be have been established. In the earlier suit, the ownership of the plaintiff over the disputed plot was clearly established and since the property in question tallies with the one which has been described in the instant proceedings, I am of the opinion that the findings recorded by the first appellate Court do not warrant any interference. In any eventuality, it is a question of fact which has been determined by the first appellate Court. The plaintiff has specifically pleaded that he was dispossessed about ten days prior to the filing of the suit and a kotha was constructed thereon by the appellants. In this view of the matter, the pleadings cannot be said to be vague even though it would have been more appropriate if the plaintiff had given the exact duration of the period of ten days of dispossession prior to the filing of the suit. The contention of the learned counsel for the appellants is, therefore, misplaced when he contended that there is no such pleading to this effect. The pleadings and the period of dispossession specified in the plaint are not so remote so as to suggest that they are vague. On the basis of the above discussion, it is held that no question of law, much less a substantial question of law arises for determination by this Court. Accordingly, this appeal is dismissed being devoid of any merit. March 23,2010 “SCM” ( Mahesh Grover ) Judge