Ajit Kumar & Ors. v. Mohinder Pal Singh

Hon'ble Mr. Justice L.N. Mittal Present : Mr. RC Setia, Senior Advocate with Mr. Vishal Ranjan, Advocate, for the appellants Mr. Sanjay Majithia, Senior Advocate with Mr. Shailender Sharma, Advocate, for the respondent L.N. Mittal, J. (Oral) This is second appeal by defendants no. 1 to 4 and legal representative of defendant no. 5. Suit filed by plaintiff had been dismissed by the trial court but has been decreed by the lower appellate court. Plaintiff alleged that he is owner in possession of 14 kanals 12 marlas land comprised of khasra no. 791//117. Even the defendants admitted this part of the claim of the plaintiff. However, plaintiff also alleged that he is in possession of 1 kanal 7 marlas land out of khasra no.

127. The defendants without having any right, title or interest therein threatened to dispossess the plaintiff therefrom. Regular Second Appeal No. 4094 of 2009 -2- Defendants admitted the plaintiff to be owner in possession of 14 kanals 12 marlas of khasra no. 719//117. However, the defendants denied plaintiff to be in possession of any part of land of khasra no. 127. It was pleaded that under the garb of the suit, the plaintiff wants to encroach upon the land of khasra no. 127 which is a Nala (water drain). Defendants nos. 2 and 3 claimed to be in possession of 1 kanal 10 marlas of land out of khasra no. 127. Learned Civil Judge (Junior Division), Dasuya vide judgment and decree dated 14.11.2005 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 31.7.2009 and thereby suit filed by the plaintiff has been decreed. Feeling aggrieved, the defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. As noticed hereinabove, there is no dispute that plaintiff is owner in possession of land measuring 14 kanals 12 marlas land of khasra no. 791//117. Defendants admitted the same in their written statement. This fact is also proved from the revenue record produced in evidence. Consequently, judgment and decree of the lower appellate court regarding the said land have to be affirmed and even learned counsel for the appellants does not dispute the same. The dispute remains regarding land measuring 1 kanal 7 marlas of khasra no. 127 over which the plaintiff claims his possession which is disputed by the defendants. Regular Second Appeal No. 4094 of 2009 -3- Following substantial question of law arises for determination in the instant second appeal:- “Whether finding of the lower appellate court that plaintiff is in possession of 1 kanal 7 marlas land of khasra no. 127 is illegal and perverse and legally not sustainable ?” Learned counsel for the appellants vehemently contended that as per revenue record, the entire land measuring 7 kanals 14 marlas of khasra no. 127 was Nala meant for irrigation and therefore, plaintiff is not in possession of any part of land of khasra no. 127. On the other hand, learned counsel for the plaintiff-respondent contended that as per revenue record, 4 kanals land of khasra no. 127 is under cultivation. The plaintiff, it is contended, is in possession of 1 kanal 7 marlas land of khasra no. 127 which abuts on northern side of plaintiff's land of khasra no. 791//117. I have carefully considered the aforesaid contentions. Perusal of the revenue record reveals that total area of khasra no. 127 is 7 kanals 14 marlas. Perusal of Akashajjra Ex. P4 reveals that land of khasra no. 127 is in the shape of straight Nala, its width being 3 karms towards east and 4 karms towards west. It also reveals that 37 karams width of plaintiff's land of khasra no. 791//117 abuts this Nala. The emphasis of counsel for the plaintiff-respondent is that plaintiff is in possession of the land of khasra no. 127 lying in front of plaintiff's land of khasra no. 791//117. However, this contention is not born out from the revenue record. The plaintiff is not shown to be in possession of any part of land of khasra no. 127. Merely because Nala comprised of khasra no. 127 flows in front of the plaintiff's land would not give rise to any inference that the plaintiff is in possession of Regular Second Appeal No. 4094 of 2009 -4- the land of khasra no. 127 falling in front of land of khasra no. 791//117. On the contrary, as per jamabandi for 1918-19, Ex. D1 entire land measuring 7 kanals 14 marlas of khasra no. 127 was Nala being owned by proprietors and it was in possession of Deputy Commissioner. Same appears to be position in jamabandi for 1955-56 Ex. D2 except that it was recorded to be for irrigation in the column of occupation. Gradually, however, later on area under Nala decreased steadily and some area of khasra no. 127 was recorded to be abadi or under cultivation. However, no part of khasra no. 127 is recorded to be in possession of the plaintiff. It may be added that even if the entire width of Nala falling in front of plaintiff's land of khasra no. 791//117 is taken into consideration, its area would not come to 1 kanal 7 marlas but would come to almost half of it. Admittedly, Nala is existing on the spot. However, according to the learned counsel for the appellants, width of said Nala is lesser. Even if it be so, remaining portion of Nala lying in front of the plaintiff's land would come to much less than half of 1 kanal 7 marlas claimed by the plaintiff out of khasra no. 127. In any event the plaintiff is not proved to be in possession of any part of khasra no. 127 lying in front of plaintiff's land of khasra no. 791//117. Learned lower appellate court straight away jumped to the conclusion that plaintiff is proved to be in possession of 1 kanal 7 marlas of land of khasra no. 127 without assigning any reason and without discussing any evidence on record. Obviously, the said conclusion of the lower appellate court is patently perverse, illegal and unsustainable. The said conclusion is not supported by any evidence of revenue record and is rather Regular Second Appeal No. 4094 of 2009 -5- contradicted by the evidence on record in the form of revenue record. For the aforesaid reasons, I find that plaintiff is not proved to be in possession of 1 kanal 7 marlas land of khasra no. 127 or in possession of any part of khasra no. 127. Finding of the lower appellate court that plaintiff is in possession of 1 kanal 7 marlas land of khasra no. 127 is patently illegal, perverse and unsustainable in law. Substantial question of law framed hereinabove is answered accordingly. For the reasons aforesaid, the instant appeal is allowed partly and judgment and decree of the lower appellate court are affirmed relating to 14 kanals 12 marlas land of khasra no. 791/117. However, judgment and decree of the lower appellate court are set aside relating to land measuring 1 kanal 7 marlas land of khasra no. 127 and plaintiff's suit relating to the same stands dismissed. August 24, 2010 'dalbir' ( L.N. Mittal ) Judge