Ranjit v. Govinda & Anr.

......LR of Defendant No.1/Appellant(s) Versus Ranjit Singh and others ......Plaintiff/Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. B.S. Tewatia, Advocate for the appellant. Rakesh Kumar Garg, J. This judgment shall dispose of two appeals i.e. RSA Nos.3998 of 2007 filed by the plaintiff and 3027 of 2008 by Rattan Singh, LR of defendant No.1, as both these appeals have arisen out of one common judgment rendered in the case of same parties by the Lower Appellate Court. As per the averments made in the plaint, the plaintiff along with his brothers was the owner in possession of the residential plots detailed in para No.1 of the plaint and they were using the suit property peacefully and without any interruption since long. The defendants were strong headed persons and wanted to dispossess the plaintiff and his brother from the suit property forcibly and illegally without any right, title or interest. They had already encroached upon some other land which was owned and RSA No.3998 of 2007(O&M) 2 possessed by the predecessors-in-interest of the plaintiff forcibly and illegally. The plaintiff requested the defendants not to dispossess him and his brother from the suit land, however, the defendants refused to do so. Hence the suit. Upon notice, the suit was resisted by the defendants by denying that the plaintiff was owner and in possession of Khasra No.6, as alleged and asserted that the defendants were owners and in possession of Khasra No.6 from the time of immemorial. The plaintiff was a clever and dishonest person and under the garb of the present suit wanted to grab Khasra No.6 which was owned and possessed by them. All other allegations were denied and dismissal of the suit was prayed for. Replication controverting the pleas taken in the written statement and reasserting those of the plaint, was filed. On the pleadings of the parties, the trial Court framed the following issues: “1. Whether the plaintiff along with his brothers are owners and in possession of the residential plot, as alleged?OPP

2. Whether the plaintiff is entitled to injunction, as prayed for? OPP

3. Whether the present suit is not maintainable in the present form? OPD

4. Whether the plaintiff has no locus standi to file the present suit? OPD

5. Whether the plaintiff has no cause of action to file the present suit? OPD

6. Whether the plaintiff is liable to pay special costs under Section 35-A CPC? OPD RSA No.3998 of 2007(O&M) 3

7. Relief.” On the basis of the evidence on record, the trial Court found that the possession of the plaintiff over the suit property was long and therefore, he had every right to protect the same against the defendants who were strangers to the suit property and had no right to interfere in any manner. Consequently, the suit of the plaintiff was decreed and the defendants were restrained from dispossessing the plaintiff from the suit property forcibly and illegally. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, defendant No.1 filed an appeal submitting that he had no concern with Khasra Nos.4 and 5 but Khasra No.6 was owned and possessed by him along with proforma respondents. It was contended that demarcation report Ex.PW-1/1 was not proved on record and did not prove the possession of the plaintiff-appellant over the suit property in any way. It was further contended that even otherwise witnesses of the plaintiff- appellant had admitted that the plaintiff was not in possession of Khasra No.6 and in fact, Govinda-defendant No.1 was in possession of the said Khasra number and therefore, the suit for injunction was not maintainable on behalf of the plaintiff. On the other hand, it was argued on behalf of the plaintiff that he was owner in possession of Khasra Nos.4, 5 and 6 which stood proved from demarcation report Ex.PW-1/1 and Khasra No.6 which is an abadi area was forcibly occupied and later on, after interim stay was granted in his favour, the said Khasra number was vacated by Ranjit and thus, the suit was maintainable as he was in possession of said Khasra No.6. It was further argued that in view of the admission of defendants regarding Khasra Nos.4 and 5, the appeal was liable to be dismissed. RSA No.3998 of 2007(O&M) 4 After hearing learned counsel for the parties, the Lower Appellate Court held that the demarcation report does not prove the possession of the plaintiff over Khasra No.6 on the date of filing of the suit and the plaintiff was not proved to be in possession of Khasra No.6. In these circumstances, suit for injunction qua Khasra No.6 was held to be not maintainable and keeping in view the aforesaid discussion, while accepted the appeal partly, the findings of the trial Court were modified that it was held that the plaintiff was not in possession of Khasra No.6 and was not entitled to injunction in respect of Khasra No.6. Challenging the aforesaid findings of the Lower Appellate Court, the plaintiff-Ranjit as well as Rattan Singh son of defendant No.1- Govinda (appellant in Civil Appeal No.3027 of 2008) have filed these appeals. I have heard learned counsel for the parties. The only dispute in these appeals is with regard to the possession of plot No.6. The Lower Appellate Court on appreciation of evidence recorded a finding of fact that the plaintiff was in possession of Khasra Nos.4 and 5 only and was not in possession of Khasra No.6 on the date of filing of the suit and therefore, he is not entitled to the decree as prayed. The question of possession is essentially a question of fact. The Lower Appellate Court has returned its findings on appreciation of evidence. Learned counsel for the parties were unable to point out any material evidence which has not been considered before recording the aforesaid findings of fact. There is no perversity in the findings recorded by the Lower Appellate Court. In this view of the matter, I am not inclined to interfere in the judgment and decree of the Lower Appellate Court. RSA No.3998 of 2007(O&M) 5 No substantial question of law arises in these appeals. Thus, both the appeals are dismissed. May 24, 2010 (RAKESH KUMAR GARG) JUDGE