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Judgment
Rajesh Tandon, J.—Heard Sri V.K. Bisht, Sr. Advocate assisted by Smt. Seema Sirohi, Counsel for the appellant and Shri Pramod Belwal, Counsel for the respondent.
By the present first appeal filed under section 96 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 8.4.2003 passed by the District Judge, Uttarkashi in Original Suit No. 47 of 1998.
Briefly stated, a suit was filed by the plaintiff being suit No. 47 of 1998 praying for ejectment and recovery of damages. According to the plaint averments, the plaintiff is recorded as bhumidhar of the land khet No. 1982 ''Aa'' area 0.005 Hectare situate at Khasra No. 120, village Barahat in the fasli year 1403 to 1408. In the year, 1991 after the earthquake, the defendants started residing in the aforesaid land of the plaintiff by putting Tripal7. After January, 1993, when the other persons of earthquake affected were rehabilitated, the plaintiff asked the defendants to vacate the land in question but the defendants did not vacate the same. The defendants assured the plaintiff that they will vacate the land in question. It has been alleged that the defendants do not want to vacate the premises and intend to grab the land in question. The plaintiff has given the notice for ejectment to the defendants but they have denied to have received the same, hence, the present suit.
The defendants have filed the written statement stating therein that they have taken the possession of the land in dispute in the capacity of tenant of late Smt. Shyama Devi. In the year 1988, Smt. Shyama Devi gave a proposal to the defendant for selling the land in dispute and received a sum of Rs. 25,000/ towards advance. In paragraph No. 13 of the written statement, it has been stated as under:
It has been stated that the defendants are in peaceful possession over the land in dispute and the plaintiff has no right over the said property. The suit of the plaintiff is based on the wrong facts. The plaintiff wants to grab the land in question. The suit is liable to be dismissed.
On the pleadings of the parties, the Trial Court has framed the following issues:
"1. Whether the plaintiff is owner and bhumidhar of the land in suit and defendants are in illegal possession over the said land?
Whether the land in suit was purchased by the defendants from its owner Smt. Shyama Devi in the year 1988 and since then they are in possession thereon?
Whether the plaintiff is entitled to mense profit as claimed by him?
To what relief, if any, is the plaintiff entitled?
Whether property in suit all in portion 9 muthi of khasra No. 1982 and 1983 as alleged in para 19 of the W.S.?
The plaintiff has examined A tar Singh as P.W.I and Anand Prasad as P.W.2. Towards the documentary evidence, the plaintiff has produced paper Nos. 9 ga to 20 ga per list 8 ga, paper No. 34 ga per list 33 ga, paper No, 55 ga i.e. copy of khatauni, paper No. 73 ga i.e. copy of affidavit of Dayal Lal and paper No. 74 ga i.e. order dated 22.9.1999 passed in suit No. 35 of 1998.
The defendants have examined Smt. Dayarani as D.w.1 and Shri Vijay Singh as D.W.2. Towards the documentary evidence, the defendants have produced copy of plaint filed in suit No. 11 of 1986 i.e. paper Nos. 40 ga to 41 ga, paper Nos. 51 ga to 53 ga per list 50 ga and paper No. 77 ga.
While deciding issue No. 1 as to whether the plaintiff is owner and bhumidhar of the land in suit and defendants are in illegal possession over the said land, issue No. 2 as to whether the land in suit was purchased by the defendants from its owner Smt. Shyama Devi in the year 1988 and since then they are in possession thereon and issue No. 5 as to whether property in dispute falls in khasra No. 1982 and 1983 as alleged in para 19 of the W.S., the Trial Court has relied upon the paper No. 52 ga i.e. copy of sale deed which has been produced by the defendant. The Trial Court has further relied upon the commissioner report i.e. paper No. 63 ga/2 and has recorded the findings to the following effect:
The Trial Court has further recorded the finding that even if Smt. Shyama Devi has executed no document in favour of the defendants, the plaintiff is not entitled to get the benefit of it. The Trial Court, therefore, has come to the conclusion that the plaintiff is not the owner of the land in dispute and, therefore, the defendants cannot be evicted from the land in dispute.
On the basis of the aforesaid, the Trial Court has dismissed the suit of the plaintiff.
Counsel for the appellant has submitted that the trial court has not considered the khatauni (paper No. 10 Ga) showing the plaintiff as Khatedar of property in dispute. Counsel for the appellant has further submitted that the Trial Court has not considered the fact that the land in question is the different property which Smt. Shyama Devi has donated to Bal Kalyan Samiti in the year 1983.
In view of the aforesaid, I deem it a fit case to remand to the Trial Court. The trial court shall take into consideration the copy of khatauni i.e. paper No. 10 Ga. The Trial Court shall further appoint an Advocate Commissioner in order to ascertain as to whether the land in question is different to that land which has been donated to the Bal Kalyan Samiti by Smt. Shyama Devi. Thereafter, the Trial Court shall pass an appropriate order in accordance with law.
In view of the aforesaid, the judgment and decree passed by the Trial Court is set aside.
Subject to the aforesaid, appeal is allowed and remanded to the Trial Court for deciding afresh in the light of the observations made above. No order as to costs.