Ram Singh & Ors. v. Col.Shamsher Singh & Ors.

CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Mr. Sudhir Mittal, Advocate for the appellants. Mr. C.B.Goel, Advocate and Mr. Nitin Jain, Advocate for respondent No.1. Mr. Vikram Dhakla, Advocate for respondents. K.C.PURI, J. This is a regular second appeal directed by plaintiff-appellant against the judgment dated 30.4.1985 passed by Shri K.C.Dang, Additional District Judge, Karnal vide which the appeal preferred by the present plaintiff-appellants against the judgment dated 28.2.1984 passed by Mr. Manjit Singh, Sub Judge 2nd Class, Karnal dismissing the suit of the plaintiff, stood partly accepted to the extent that defendants shall not interfere with the possession of the plaintiff over the property in suit otherwise than in due course of law. RSA No.1672 of 1985 2 Shorn off unnecessary details, the case of the plaintiff as set forth in the plaint is that plaintiff is one of the co-sharers in the shamliat Qushba of the Revenue Estate of Karnal. Plaintiff being a proprietor in the Shamliat, Qusba is in cultivating possession of the suit land measuring 10 bighas comprised in Khewat No. 2355, Khatauni No. 5403 min Khasra No. 2249 Min (34B-10B). The location of the land in dispute is shown in the site plan Ex. P-1. The defendants, who are strong and influential persons in the locality, threatened the plaintiff to dispossess him from the land in dispute for which they have no legal right. The defendants were requested to admit the claim of the plaintiff but all in vain, hence the suit. In their written statements, defendant No.1, 2,3 and 5 have pleaded that plaintiff has not come to the Court with clean hands and hence is not entitled to any discretionary relief; defendants No. 2 and 3 are minors and they are not being sued properly and no application under Order 32 Rules 3 and 4 C.P.C. alongwith affidavit has been filed, which is mandatory. They have further pleaded that plaintiff never cultivated the land in dispute rather defendant No. 1 to 3 and 5 are in possession of 8 bighas of land out of the suit land. They have also made kotha on the suit land, where they teather their cattle. Plaintiff being influential person, in collusion with Halqa Patwari, got changed the revenue entries in his name and application for correction of Khasra girdawari is already pending before the Revenue Courts. As the defendants are in possession of the land in dispute, so there was no occasion for them to dispossess the plaintiff. Similarly, defendant No.4 controverted the assertions of the RSA No.1672 of 1985 3 plaintiff and pleaded that he is in possession of 2 bighas of land out of the total land and he is using the land for tethering his cattle, buggi and for sowing grass and other crops etc. The khasra girdawari entries are wrong and defendants prayed for dismissal of the suit. The following issues were framed from the pleadings of the parties::-

1. Whether the plaintiff is co-sharer in the suit land and is in possession of the suit land ? OPP.

2. Whether the plaintiff has come to the Court with clean hands? OPD

3. Relief. The parties have led their respective evidence on the aforesaid issues and after appreciating the same and hearing the learned counsel for the parties, the trial Court dismissed the suit. Feeling dis-satisfied with the judgment dated 28.2.1984, the appeal was preferred before the First Appellate Court. The said appeal was partly dismissed by learned Additional District Judge, Karnal vide judgment dated 30.4.1985 directing that defendants shall not interfere with the possession of the plaintiff over the property in suit otherwise than in due course of law. Feeling dis-satisfied with the judgments dated 30.4.1985, appellants have preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case. RSA No.1672 of 1985 4 Learned counsel for the appellant has submitted that the trial Court has given a definite finding that the plaintiff is not in possession of the suit property. The First Appellate Court has given the finding on the basis of khasra girdwari that plaintiff is in possession of the suit property. According to khasra girdwari, four bighas of land has been shown to be banjar kadim i.e. lying vacant. The possession of plaintiff would be that of the owner. The owner has been shown to be shamlat kasba. Mere fact that in 6 bighas of land there is some crop, does not prove the possession of the plaintiff over the suit property. The trial Court has misread and misinterpreted the evidence in this regard. On the other hand counsel for the plaintiff-respondent has supported the judgment of the trial Court. I have gone through the records of the case. Learned counsel for the appellant could not draw my pointed attention towards the evidence which has been misread and misinterpreted by the First Appellate Court. The Hon'ble Apex Court in authority Mst. Sugani vs. Rameshwar Das & Anr. 2006(4) R.C.R. (Civil) 319 in paragraph 25 held as under :- “25. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for RSA No.1672 of 1985 5 interference in second appeal, when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two interference are possible. One drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” So, according to the above observations, the conclusion drawn by the First Appellate Court should not be inferred by High Court unless the same are proved to be perverse and based upon inadmissible evidence. The First Appellate Court has given the finding on the basis of the revenue record which has been ignored by the trial Court. So, the finding of fact arrived at by the First Appellate Court does not call for any interference. So, I have no hesitation in holding that there is no substantial question of law has arisen in the present case. The First Appellate Court has not misread and misinterpreted the evidence on the file. In view of the above discussion, the appeal is without any merit and the same stands dismissed. Decree sheet be prepared. RSA No.1672 of 1985 6 A copy of this judgment be sent to the trial Court for strict compliance. July 14th, 2010 (K.C. PURI) JUDGE