Parveen Kumar & Ors. v. Ram Kishan Dhiman & Anr.

Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. Amit Sharma, Advocate for the appellants. ... Rakesh Kumar Garg,J.(Oral) C.M.No.6151-C of 2010 Learned counsel for the appellants has submitted that the application for leave to appeal filed on behalf of the appellants Nos.2 and 3 be ordered to be dismissed as withdrawn with liberty to the aforesaid appellants to seek any other appropriate remedy in accordance with law. With the aforesaid liberty, this application is ordered to be dismissed as withdrawn qua appellant Nos. 2 and 3. Resultantly, appeal filed on behalf of appellant No.2 is also dismissed. RSA No.1972 of 2010 Plaintiff- respondent No.1 filed the instant suit for possession of the suit property as shown in the site plan attached with the plaint being part and parcel of his plot No.50 which was purchased by him vide sale deed dated

7.6.1965 from one Mohd. Taqi. As per the plaintiff-respondent, respondent Nos. 2 to 4 (defendant Nos.1 to 3) illegally encroached upon the suit land and raised construction on it taking undue advantage of his absence. Plaintiff further averred that on coming to know about the aforesaid illegal acts of defendants, he contacted them, who RSA No. 1972 of 2010 2 claimed to have purchased the part of land from Mohd. Taqi vide sale deed dated 10.12.1984. It was further averred that since Mohd. Taqi had already sold the suit property to the plaintiff-respondent, he had no right to alienate the same to defendants and thus the defendants had no right, title or interest in the suit land. Hence the suit. Upon notice, defendant Nos.1 to 3 filed joint written statement and contested the suit pleadings that they were owners in possession of the property in question. Plaintiff never purchased the plot in question from Mohd. Taqi. It is further case of the defendants that vide sale deed dated 10.12.1984, they were put into physical possession of the suit property and since the date of purchase they were in possession as owners and they have not encroached upon the land of the plaintiff-respondent. They were bonafide purchasers for consideration and the construction was raised to the knowledge of the plaintiff -respondent, hence the suit was liable to be dismissed. From the pleadings of the parties, the following issues were framed:- i) Whether the plaintiff is entitled for possession of site as alleged in the plaint ?OPP ii) Whether the present suit is liabale to be dismissed on the ground of non-payment of costs ?OPD iii) Whether the suit is time barred ?OPD iv) Whether the suit is barred by principle of resjudicata ?OPD v) Whether the suit is not maintainable in the present form ?OPD vi) Whether the suit is bad for mis-joinder of parties ?OPD vii) Relief. The parties led evidence. The then Civil Judge (Junior Division), Jagadhari dismissed the suit. The appeal filed by the plaintiff was accepted by Shri D.S. Sheoran, the then Additional District Judge, Jagadhari by setting aside the judgment and decree of the trial court and remanding the suit with direction for fresh decision after recording fresh evidence. RSA No. 1972 of 2010 3 After remand, appellant Parveen Kumar was impleaded as defendant No.13 being subsequent purchaser from defendant Nos.1 to 3. Parties again led the evidence to their satisfaction. The trial Court on appraisal of evidence answered issue No.1 against the plaintiff. Issue Nos.2 to 4 were decided against the defendant being not pressed. Issue No.5 was decided in favour of the defendant and as a result the suit of the plaintiff was dismissed. In appeal before the lower Appellate Court, Local Commissioner was appointed vide order dated 3.10.2008 to demarcate the suit property. He submitted his report. Objections were filed by the defendant-respondents to the aforesaid report and even the Local Commissioner was cross examined. On the basis of the evidence, it was concluded by the lower Appellate Court that defendant Babu Ram had purchased the land which was part of plot No.50 without verifying the title of the suit property and the suit property was part of plot No.50 owned by the plaintiff-respondent. Hence the suit was decreed by the lower Appellate Court. Feeling aggrieved from the aforesaid judgment and decree of the lower Appellate Court, the appellant(defendant No.13) has filed the instant appeal submitting that the following substantial questions of law arises in this appeal:- (i) Whether the learned lower Appellate Court has erred in appreciating/evaluating the evidence placed by the defendants on record ? (ii) Whether the judgment and decree could be passed by the learned lower Appellate Court against the persons who are/were not even party before it as no effort was made by the respondent No.1 plaintiff to implead them and the learned lower Appellate Court has also ignored this aspect ? (iii) Whether the judgments and decree passed by the learned lower Appellate Court is executable against the parties who were RSA No. 1972 of 2010 4 not impleaded in the pleadings and have not been given any opportunity of being heard and their rights have not been determined either positively or negatively ? (iv) Whether any relief could have been granted to the respondent No.1/plaintiff without getting the plot/disputed property demarcated as the respondent No.1/plaintiff is entitled to 446 square yards i.e., the area of his plot No.50 as per his sale deed and not beyond the same ? I have heard learned counsel for the appellant and perused the impugned judgment and decree. It is pertinent to mention at this stage that appellant was arrayed as defendant in the suit being subsequent purchaser of defendant Nos. 1 to 3. Neither the appellant filed any fresh written statement nor raised any argument in support of his case independent of defendant/respondent Nos.1 to 3 and thus he could raise only those arguments which were available to him being successor in interest of respondent-defendant Nos.1 to 3. However before this court, learned counsel for the appellant was unable to raise any argument to substantiate the questions of law as raised by him in the grounds of appeal. Moreover, a perusal of the impugned judgment and decree would show that the lower Appellate Court had reached to the conclusion that suit property is part of plot No.50 purchased by the plaintiff-respondent vide sale deed dated 7.6.1965 from Mohd. Taqi and the sale deed dated 10.12.1984 in favour of defendant Nos.1 to 3 will not give them any right, title or interest as on that date, Mohd. Taqi had no title in the suit property which could be transferred to the aforesaid defendant/respondents. No material evidence which has been ignored by the lower Appellate Court has been pointed out. Thus I find no merit in this appeal. No substantial question of law arises. Dismissed. November 9, 2010 (RAKESH KUMAR GARG) JUDGE