Balak Ram vs Shakuntla Devi And Ors

Javed Iqbal Wani, J

In the instant Civil 2nd Appeal, the appellant has thrown challenge to the judgment and decree dated 18.11.2009 (for short the, “impugned judgment and decree”) passed by the Court of Additional District Judge, Jammu (hereinafter referred to as the “Appellate Court”) in an appeal titled as, “Shakuntla Devi and ors. vs. Balak Ram”.

The facts leading to the filing of the instant appeal would reveal that the plaintiff/appellant herein filed a civil suit for possession of land measuring 03 Marlas covered under Survey No. 21/min situated at Village Bahu Fort, Jammu while seeking the following relief:-

“……………...It is prayed that a decree for possession of 03 Marlas of vacant land comprising Khasra No. 21/min situated at Village Bahu Fort, Jammu alongwith demolition of illegal construction in question during the pendency of prolonged litigation against the parties, be granted in favour of the plaintiff against the defendant with costs.”

One-Bal Krishan S/o Paras Ram R/o Bahu Fort, Jammu-predecessor-in-interest of the present respondents was impleaded as defendant in the said suit.

The defendant filed written statement to the suit, denying the claim of the plaintiff to be the owner of the suit land, however, claimed that the suit land had been in his possession and occupation, whereupon the house and shops had been constructed.

During the pendency of the suit (supra), the original defendant-Bal Krishan died, whereupon the present respondents came to be substituted in his place as defendants.

On the pleadings of the parties, the trial Court being 3rd Additional Munsiff, Jammu framed following five issues:-

“1. Whether the suit is time barred? OPD

Whether the suit has not been properly valued for purposes of Court fee and jurisdiction? OPD

Whether the plaintiff is owner of suit land? OPP

Whether the plaintiff was dispossessed by defendant in January, 1985? OPP

Relief.”

Before the trial Court, the plaintiff besides appearing himself in the witness box also examined four witnesses, namely, Prem Dursal, Jagdish Raj, Nek Ram and Gulam Nabi-Tehsildar in support of his case and while appearing as his own witness, the plaintiff reiterated the stand taken in the plaint, however, further stated that the land in dispute belonged to one-Lakhu, who had purchased the same in an auction proceedings while denying the land to be belonging to one-Mst. Chatoo.

The original defendant-Bal Krishan besides entering himself into the witness box also examined three witnesses, namely, Hussain Mohd., Vishnu Nath Bali and Vishwa Nath-Head Record Keeper and in his statement before the trial Court, the defendant stated that the suit land initially belonged to one-Ganjara and thereafter to his wife-Gaseeti, whereafter the same devolved upon Mst. Chatoo and in her favour, a mutation was also attested and further stated that thereafter his uncle-Agya Ram owned the land in question, where he opened a School, as also has been residing therein since 1968-69 and also stated that adjacent to the said land existed a vacant portion of land falling under Khasra No. 21 belonging to the plaintiff, whereupon the plaintiff had constructed his residential house.

The trial Court while deciding the suit on 10.03.2004, in the first instance, decided Issue No. 1 as to whether the suit is time barred, the onus whereof to prove was put on the defendants/respondents herein. The trial Court held that the suit being a suit for possession and not for recovery of possession, as provided under the provisions of Section 9 of the Specific Relief Act, is not barred by limitation, in that, the plaintiff have had alleged his dispossession from the land in question in the year 1985 and that the suit came to be instituted in the year 1990 well within the prescribed period of limitation.

The trial Court while deciding Issue No. 3 being as to whether the plaintiff is the owner of the suit land, onus to prove whereof had been put on the plaintiff, concluded on the basis of evidence that the plaintiff is the owner of the land and, accordingly, decided the issue in favour of the plaintiff.

Aggrieved of the judgment and decree passed by the trial Court on 10.03.2004, the respondents herein filed an appeal on 02.04.2004 before the Appellate Court and the Appellate Court decided the said appeal on 11.12.2008, holding that the same to be without any merit.

It is significant to note here that during the pendency of the appeal, the appellants/respondents herein had filed an application under Order 41 Rule 27 of the CPC, seeking leave of the Appellate Court to produce/adduce additional evidence, wherein the appellants/respondents herein had averred that during the pendency of the appeal, „Nishandehi’ of the land in question had been done by the Tehsildar, Girdawar and Partwari on 05.05.2004, reflecting the position of the land, as also its possession with the respective parties.

Being aggrieved of the judgment of the Appellate Court dated 11.12.2008, whereby their appeal came to be dismissed, the appellants/respondents herein filed Civil Second Appeal bearing No. 03/2009 before this Court, which appeal came to be remanded back and disposed of by this Court on 16.07.2009 in presence of the counsel for the respondent/appellant herein after counsel for the respondent conceded that the judgment and decree passed by the Appellate Court was not sustainable, in that, the Appellate Court had not considered the additional evidence, that had been led by the appellants/respondents before the Appellate Court.

The Appellate Court upon remand of the matter by this Court in terms of order dated 16.07.2009 consequently passed the judgment and decree under challenge in the instant Civil 2nd Appeal dated 18.11.2009 reversing the judgment and decree dated 10.03.2004 passed by the trial Court, dismissing the suit of the plaintiff/appellant herein, holding that the plaintiff/appellant herein failed to prove to be the owner of the suit land measuring 03 Marlas covered under Survey No. 21/min situated at Village Bahu Fort, Jammu.

The appellant herein has questioned the impugned judgment and decree on the grounds urged in the memo of appeal.

This Court while considering the instant appeal on 24.08.2011, framed following two substantial questions of law:-

“1. Whether the Appellate Court failed to consider the relevant documents relied upon by the appellant and the additional documents relied upon by the respondents, which according to the appellant, were not proved by the respondents before the Appellate Court.

Whether the conclusion of the Appellate Court was in tune with the pleadings of the parties.”

Before adverting to the aforesaid substantial questions of law, a deeper and closer examination of the evidence on record becomes imperative. The plaintiff/appellant herein, as noticed in the preceding paras, examined besides himself the witnesses, namely, Prem Dursal, Jagdish Raj, Nek Ram and Gulam Nabi-Tehsildar. In his statement, the plaintiff/appellant herein while appearing as his own witness, claimed to have become the owner of the land in question pursuant to sale effected by one-Lakhu. The perusal of the record of the trial Court would reveal that the said Lakhu, in fact, had purchased in Court auction proceedings a one storey house, reflected in the Auction Certificate, which Certificate, however, does not reflect any land to have been purchased by the said Lakhu. Insofar as the witnesses produced by the plaintiff/appellant herein, namely, Nek Ram, Moharar Chowki, Bahu Fort, and Abdul Gani-Naib Tehsildar are concerned, the said witnesses only stated that the plaintiff/appellant herein was put into possession of the shops constructed over Khasra No. 21/min after the original defendant, namely, Bal Krishan was found to have committed offences under Sections 488/147 of the RPC qua the said shops. The perusal of the plaint/suit filed by the plaintiff/appellant herein as well refers and relates to the land measuring 03 Marlas covered under Survey No. 21/min, wherein it is being admitted that the said suit land was occupied by the defendants and three pacca rooms had been constructed thereon. The plaintiff/appellant herein, however, has not produced any documentary evidence to prove the factum of his being the owner of the land in question except his own oral evidence, wherein he stated that the land in question came to be purchased by him from Lakhu, who, in turn, is stated to have purchased the same through auction, whereas record reveals that the said Lakhu purchased a one storey house and not the land.

On the contrary, the additional evidence produced by the respondents herein (the appellants before the Appellate Court), produced one Nisar Ahmed by way of additional evidence besides having produced witnesses, namely, Hussain Mohd. Vishnu Nath Bali and Vishwa Nath-Head Record Keeper before the trial Court. The above named Nisar Ahmed (DW-5) before the Appellate Court deposed that as per the report in Survey No. 21, there is 01 Kanal and 11 Marlas of land and on spot, 03 Marlas out of the said land is under road and 01 Marla under the possession of one-Pushpa Devi, whereas rest of 01 Kanal and 07 Marlas is under the possession of the plaintiff-Balak Ram/appellant herein and as per the measurement of the site plan of Survey No. 18/min is 02 Marlas, 19/min is of 13 Marlas and 20 min is of 14 Marlas in possession of the applicant. The said Nishandehi report produced by the respondents herein being the appellants before the Appellate Court, came to be proved and exhibited as EXPW-NA. The aforesaid Nishandehi report reveals that the said Nishandehi had been conducted on 05.04.2004 in presence of the plaintiff-appellant herein (Balak Ram) by the revenue officers.

The Appellate Court while considering the aforesaid additional evidence led by the respondents herein/appellant before the Appellate Court and upon analyzing the entire evidence on record led by the parties before the trial Court besides the aforesaid additional evidence, observed that the plaintiff/appellant herein had laid a claim over 03 Marlas of land covered under Survey No. 21/min, claimed to have been purchased by his ancestor in Court auction. The Appellate Court, therefore, opined that the plaintiff failed to prove to be the owner of 03 Marlas of land covered under Survey No. 21/min.

It is pertinent to note here that when the respondents herein (appellants before the Appellate Court) led additional evidence, the plaintiff/appellant herein did not get the said evidence led rebutted or contradicted and the Appellate Court, therefore, rightly observed that in order to succeed in a suit for possession of the land, the plaintiff/appellant herein has to prove the title over the said land. The Appellate Court rightly observed that the plaintiff/appellant herein have had his proprietary land under Survey No. 21, as had been endorsed and authenticated by the Nishandehi report produced by way of additional evidence before the Appellate Court and not any portion of the land under Survey No. 21/min including the 03 Marlas claimed by the plaintiff/appellant herein in the suit. The conclusions drawn by the Appellate Court while passing the impugned judgment and decree manifestly demonstrate that the Appellate Court had been alive not only to the pleadings of the parties, but also to the respective evidence led by the parties before the trial Court, as also before it. The Appellate Court, therefore, seemingly, has rightly reversed the judgment and decree passed by the trial Court having concluded that the plaintiff/appellant herein failed to discharge the onus to prove the Issue No. 3 framed by the trial Court that he is the owner of the suit land being 03 Marlas covered under Survey No. 21/min, so much so, the revenue extracts pressed into service by the plaintiff/appellant herein in support of his claim qua the land in question were never proved either before the trial Court or the Appellate Court by the plaintiff/appellant herein, though otherwise also, in law, the revenue entries neither create nor extinguish a right in a property.

It needs to be mentioned here that though the ambit and scope of 2nd appeal enshrined under Section 100 CPC has been considerably narrowed down and substantially curtailed under and in terms of Civil Procedure (Amendment) Act of 1976, yet it transpires from a deeper examination of the impugned judgment and decree passed by the Appellate Court that the same does not call for any interference.

Viewed, thus, what has been observed, considered and analyzed hereinabove, the appeal fails and is, accordingly, dismissed.