Mange Ram v. Hazari Lal & Ors.

Present : Mr. Parminder Singh, Advocate and Mr. Harish Nain, Advocate, for the appellant. Mr. R. K. Saini, Advocate for Mr. H. S. Hooda, Advocate, for the respondents. K. C. PURI, J. (ORAL) This is an appeal directed by defendant-appellant against the judgment dated 08.02.1985 passed by Additional District Judge, Bhiwani vide which the appeal of the plaintiffs was accepted and the suit of the plaintiffs restraining the defendant now appellant from raising any construction over the land compromised in Khasra No.314/2 and 315/2 situated in revenue estate of village Jhojhu Khurd, was decreed. Hazari Lal and others filed a suit for permanent injunction in respect of land measuring 6 Biswas out of Khasra R.S.A NO.1324 OF 1985 -2- No.314 and 2 Biswas of Khasra No.315 restraining defendant- Mange Ram from raising any construction with the allegations that plaintiffs are proprietor of Panna Sekhon constructed well 40 years back in the suit property. On 05.09.1980 defendant started digging out the foundation for the erection of the wall over the land meant for goon of the well and apprehending illegal and unauthorized construction at the hands of defendant, the plaintiffs have filed a suit for injunction. The suit was contested by Mange Ram-defendant with the allegations that he has purchased 16 Biswas of land out of Khasra No.314 through a registered sale deed dated 08.03.1977 for a consideration of Rs.6000/- from Ram Singh, Ram Kumar and Smt.Bhago. It is further pleaded that the well is not constructed in Khasra No.314 and that a house has been constructed in that khasra no. From the pleadings of the parties, the following issues were framed by the trial Court : 1) Whether the plaintiffs are the joint owners of the suit land and they constructed their well 40 years ago on it ? OPP 2) whether the defendant is owner and in possession of the suit land as alleged in paragraph No.1 of the written statement ? OPD 3) Whether the suit is not maintainable in the present form ? OPD R.S.A NO.1324 OF 1985 -3- 4) Whether the plaintiffs are estopped from bringing the present suit ? OPD 5) Whether the suit is bad on account of non- joindor of necessary parties and not being in a representatives capacity as alleged in paragraph No.11 of the written statement ? OPD 6) Whether the suit is false and frivolous and the defendant is entitled for special costs ? OPD 7) Relief. Plaintiffs examined Richhpal as PW-1, Dod Ram, Mason as PW-2, Richhpal s/o Rajroop as PW-3, Ram Narain as PW-4, Mr.Ram Parshad, Advocate as PW-5, Amar Singh as PW-6 and closed the evidence after tendering the documents. In rebuttal, defendant himself stepped into the witness box as DW-2, Kuldeep Singh, Record Keeper as DW-1, Suraj Bhan as DW-3, Rati Ram, Field Kango as DW-5 and closed the evidence after tendering certain documents. The learned trial Court after appraisal of the evidence, returned the findings on Issues No.4 and 5 against the defendant. However, remaining issues were decided against the plaintiffs and consequently the suit of the plaintiffs for permanent injunction was dismissed holding that the plaintiffs have failed to prove that the well exists in Khasra No.314/2 and 315/2. R.S.A NO.1324 OF 1985 -4- Feeling dissatisfied with the above said judgment, the plaintiffs preferred the first regular appeal which was heard and decided by Additional District Judge, Bhiwani. The said appeal was accepted vide judgment dated 08.02.1985 by holding that the well exists in Khasra No.314/2 and 315/2 and defendant was restrained from raising any construction over the land measuring 6 Biswas out of Khasra No.314/2 and 2 Biswas out of Khasra No.315/2. Feeling dissatisfied with the above said judgment dated 08.02.1985 passed by Additional District Judge, Bhiwani, the present appeal has been preferred by the defendant. Learned counsel for the appellant has submitted that the case of the plaintiffs is based upon Mutation Exhibit P-1. The mutation does not confer any title. It is submitted that the following substantial questions of law have arisen in the present case for adjudication : 1) Whether mutation Exhibit P-1 confer any title in view of the plaintiffs ? 2) Whether the First Appellate Court in its judgment dated 08.02.1985 has misread and misinterpreted the evidence holding that the well exists in Khasra No.314 (6-0)? Learned counsel for the appellant has submitted that the trial Court has returned a definite finding that the plaintiffs have failed to prove that a well exists in Khasra No.314. In the absence of evidence on the file to the effect that the well exists in R.S.A NO.1324 OF 1985 -5- Khasra No.314 (6-0), the First Appellate Court has misread and misinterpreted the evidence. The mutation Exhibit P-1 does not confer any title and as such, the same is liable to be ignored. So, prayer has been made for acceptance of the appeal by answering the above said questions of law in favour of the appellant. So far as the existence of well is concerned, that has been proved on the record beyond any doubt. All the plaintiff witnesses have stated about the existence of the well. Local Commissioner was also appointed who while appearing as PW-3 deposed that the well exists in the suit land. Even the defendant while appearing as his own witness has admitted the factum of existence of well and deposed that the well was constructed by his forefathers. It is not the case of the defendant in the written statement that well was constructed by his forefathers. DW-3 Suraj Bhan has also admitted the existence of well. The First Appellate Court has held that separate khasra no. was carved out for the purpose of well, which were Khasra No.314/2 (6-0) and 315/2 (2-0). No doubt the mere mutation does not confer any right but where the factum of well is duly reflected in the revenue record while sanctioning the mutation Exhibit P-1 in that case, it cannot be said that mutation does not confer any right in favour of the plaintiffs. The plaintiffs being resident of the village are entitle to get the injunction not to stop them from using the well and also restraining the defendant from raising any construction at the place of well. So, the learned First Appellate Court has R.S.A NO.1324 OF 1985 -6- rightly held that the well exists in Khasra No.314/2 (6-0) and Khasra No.315/2 (2-0). So far as Khasra No.315/2 (2-0) is concerned, learned counsel for the appellant has raised no dispute. The dispute raised by the appellant is in respect of Khasra No.314/2 (6-0). However, Mutation (Exhibit P-1) clinches the issue while bringing the fact that well exists in Khasra No.314/2 (6-0) and 315/2 (2-0). The existence of well along with its goon is proved on the file. So in these circumstances, both the questions of law stand answered against the appellant, as discussed above. In view of the above discussion, the appeal is without any merit and the same stands dismissed with costs. Decree sheet be prepared. JULY 01, 2010 shalini (K. C. PURI) JUDGE