Rakesh Yadav & Anr. v. Jagjit Singh & Ors.

Hon'ble Mr. Justice L.N. Mittal Present : Mr. S.N. Saini, Advocate, for the appellants Mr. Anil Kshetarpal, Advocate, for respondent no. 1 Respondent no. 2 exparte None for respondent no. 3 L.N. Mittal, J. (Oral) Defendants no. 2 and 3 have filed instant second appeal having remained unsuccessful in both the courts below. Respondent no. 1 Jagjit Singh filed suit against appellants and respondents no. 2 and 3. Respondent no. 2 herein was defendant no. 1 whereas proforma respondent no. 3 herein was defendant no. 4 in the trial court. The plaintiff alleged that his father Raja Singh since deceased with his brother Sardar Singh were owners in possession of land measuring 14 marlas comprised of khasra no. 126. On the death of Raja Singh, plaintiff Regular Second Appeal No. 2419 of 2007 -2- inherited his share as his only legal heir. Defendants have illegally encroached upon the suit plot measuring 6 marlas out of land of khasra no. 126 without any right, title or interest. They started raising construction over the suit plot. The plaintiff, therefore, sought relief of possession of the suit plot measuring 6 marlas. Defendant no. 4 was proceeded exparte in the trial court. Defendant no. 1 Lachman respondent no. 2 pleaded that he sold suit property to defendants no. 2 and 3 vide sale deeds dated 18.12.1989 and

27.11.1991 and he himself has also constructed Balmiki temple over the suit property which is exclusively owned and possessed by him. Averments of the plaintiff were controverted. Defendants no. 2 and 3 also filed similar but separate written statement. They also pleaded that they have raised construction of three shops, rooms, kitchen, store, latrine, bathroom etc. on the property purchased by them from defendant no. 1. Learned Civil Judge (Junior Division), Jagadhri vide judgment and decree dated 11.6.2003 decreed the plaintiff's suit. First appeal preferred by defendants no. 1 to 3 has been dismissed by learned Additional District Judge, Jagadhri vide judgment and decree dated 28.3.2007. Feeling aggrieved, only defendants no. 2 and 3 have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that in a suit instituted by plaintiff against Liaqat Ali etc. vide plaint Ex. D8, the plaintiff was found to be in possession of 14 marlas land by trial court vide Regular Second Appeal No. 2419 of 2007 -3- judgment dated 6.6.2003 passed in their suit and also in first appeal vide judgment dated 4.4.2005 passed by the lower appellate court in that case and therefore, the plaintiff cannot seek possession of the suit property. The aforesaid contention is completely devoid of any merit. Plaint Ex. D8 has not been proved. It was simply tendered in evidence by Rekha Rani defendant no. 3 while appearing as DW4, in the affidavit of her examination-in-chief. Obviously, Rekha Rani who was not party to the previous suit instituted by plaintiff against some other persons, could not prove the aforesaid plaint. The plaintiff was also not confronted with the said plaint in his cross-examination although the plaintiff admitted that he had filed a suit against Liaqat Ali etc. Moreover, the said suit related to property no. B-IX/512, Ward No. 22 and no where in plaint Ex. D8, the plaintiff claimed property of that suit to be part of khasra no. 126 which is involved in the present suit. It is, thus, apparent that the said suit did not relate to the present suit property. Learned counsel for the appellants referred to paragraph 19 of judgment dated 6.6.2003 of the trial court passed in the other suit. However, the said observation rather demolishes the above contention raised by appellants in the instant appeal. It has been held in paragraph 19 of the said judgment dated 6.6.2003 that the suit property of that suit was having khasra no. 33 (old khasra no. 35) and the same was situated towards south of khasra no. 126 (old khasra no. 112). From this finding in that suit, it is apparent that the property of that suit was different from the property of the instant suit. Property of the said suit was situated towards south of the property bearing khasra no. 126 of the instant suit. Even in judgment Regular Second Appeal No. 2419 of 2007 -4- dated 4.4.2005 of the appellate court in that suit, there is no finding that suit property of that suit was part of khasra no. 126 which is suit property in the instant case. It may be added that the said judgments have also not been tendered in evidence of this case so as to give opportunity to plaintiff- respondent no. 1 to respond to the same. However, even taking into consideration all the documents i.e. plaint Ex. D8 and judgment dated

6.6.2003 of the trial court and judgment dated 4.4.2005 of the first appellate court in the other suit, the contention raised on behalf of appellants cannot be accepted. Learned counsel for respondent no. 1 also pointed out that even defendant no. 1 has categorically stated in the witness box that he had not sold land of any khasra number to defendants no. 2 and 3/appellants. Thus land of khasra no. 126, to which the instant suit relates was not sold by defendant no. 1 to defendants no. 2 and 3. In addition thereto, defendant no. 1 was not even owner of any land of khasra no. 126. From the demarcation report proved by the plaintiff, suit plot is proved to be part of khasra no. 126 of which the plaintiff along with his uncle Sardar Singh is owner. Therefore, suit of the plaintiff has been rightly decreed by both the courts below. There is concurrent finding by both the courts below in favour of the plaintiff. The said finding is based on appreciation of evidence and has not shown to be perverse or illegal in any manner so as to call for interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Learned counsel for the appellants also contended that the Regular Second Appeal No. 2419 of 2007 -5- plaintiff is estopped from filing the suit as defendants no. 2 and 3 had raised construction in the suit plot. However, raising of construction by defendants no. 2 and 3 in the suit plot belonging to the plaintiff gave rise to cause of action to the plaintiff for filing the suit for possession. Learned counsel for the appellants also contended that plaintiff is not proved to be owner of the suit land. The contention cannot be accepted because entries in jamabandi depicting plaintiff and his uncle to be owner of the suit property have not been rebutted. Even otherwise, defendants do not claim any right, title or interest in the suit land in khasra no. 126. For the reasons recorded herein above, I find no merit in the instant second appeal which is accordingly dismissed. May 24, 2010 'dalbir' ( L.N. Mittal ) Judge