Hari Singh and others vs Ashok Kumar

M.M. Kumar, J.

This is defendantappellants'' appeal filed under Section 100 of the Code of Civil Procedure Code, 1908 (for brevity, `the Code'') against the concurrent findings of facts recorded by both the courts below holding that the suit of the plaintiffrespondent was liable to be partly decreed. The plaintiffrespondent had claimed possession in his suit in respect of land measuring 5 kanals 51/2 marlas. On the basis of the report of the Local Commissioner the suit of the plaintiffrespondent to the extent of 2 kanals 18 marlas was decreed as it has been found to be in possession of the defendant appellants. The report of the Local Commissioner who is a Field Kanungo has been proved on record as Exs. P.5, P.5/A and P.5/B. The plea of adverse possession setup by the defendantappellants has not been substantiated and it has been inferred from the plea that the defendantappellants were not the owner. Apart from the report of the Local Commissioner, it has also been proved on record that defendantappellants had taken forcible possession of the suit property 12 years ago. Badan Singh PW.2 who is father of the plaintiffrespondent has deposed that he executed power of attorney in favour of his son which proved ownership of the land. Being owner the plaintiff respondent was held entitled to possession. He also proved on record site plan Ex. P1. No oral or documentary evidence was produced in rebuttal by the defendantappellants. They also failed to established their adverse possession.

After hearing Mr. Sarwan Singh, learned senior counsel at a considerable length, I do not find that the findings of facts recorded by both the Courts below would warrant any interference by this Court. It is wellsettled that the question concerning possession does not involve any question of law which essentially is a question of fact. The aforementioned view has been expressed by the Supreme Court in case of Mohan Lal v. Nihal Singh, 2002(1) RCR(Civil) 132 (SC) : (2001) 8 SCC 584. Even otherwise both the courts below have recorded a categorical finding that the plaintiffrespondent was in possession and he was forcibly deprived of possession of the suit land. It has further been held that he is entitled to retain possession of a part of the land which was claimed by him in the suit. The findings of facts cannot be interfered with under Section 100 of the Code. It is also wellsettled that even if on reappreciation of evidence a different view is possible, such course should not be followed as has been held by the Supreme Court in Chander Bhan v. Pamma Bai, (2002) 9 SCC 565. Therefore, there is no ground to interfere with the judgment and decree passed by both the Courts below. The appeal is without any merit and is thus liable to be dismissed.

For the reasons recorded above, this appeal fails and the same is dismissed.