Kesha Ram vs Mohanlal

Arun Bhansali, J.—This appeal under Section 96 CPC is directed against the judgment and decree dated 30.08.2003 passed by the Additional District Judge (Fast Track) No. 2, Pali, whereby, the suit filed by the appellant-plaintiff seeking possession of the house, mesne profit and damages has been dismissed.

The facts in brief may be noticed thus:-the plaintiff claimed that the suit house boundaries whereof were indicated in para-1 of the plaint was of his ownership; plaintiff was resident of Balotra and used to visit Siriyari on and of; certain goods were lying in the suit house; on 01.11.1996 plaintiff locked his house and went to Balotra and when he returned back on 01.12.1996 to Siriyari, the goods lying in the house were missing, the lock of the room was broken and when plaintiff wanted to enter the house, defendant Nos. 1 and 2 prevented him. As such the defendants have trespassed on the house and have stolen the goods. It was claimed that the goods were worth Rs. 3,000/- and it was prayed that possession of the house alongwith damages of Rs. 3,000/- and mesne profit @ Rs. 600/- be awarded.

The defendants, who are real brothers of the plaintiff, filed a written statement, wherein, defendant Nos. 2 and 3 filed separate written statement and denied the averments made in the plaint. It was submitted that plaintiff does not have any house at Siriyari, he has sold his agriculture land by registered sale deed to Vimla, Patasi and Sukhiya from whom they (defendants) have purchased the said land and he has no right in the said agriculture land; the possession and title over the house was denied; it was claimed that as the house was constructed on agriculture land, the revenue court only has jurisdiction; the land was attached to the road and between their land and the road there was no Government land; the valuation of the land was alleged as excessive. It was claimed that the house was constructed in Khasra No. 709, which is in their possession and prayed that the suit be dismissed.

The trial court framed eight issues. On behalf of plaintiff, six witnesses were examined and on behalf of defendants, five witnesses were examined.

After hearing the parties, the trial court came to the conclusion that the disputed house was constructed in Khasra No. 709, which was on defendants'' Khatedari land; the plaintiff has neither any title nor possession; the plaintiff was not entitled to grant of any mesne profit; the suit pertained to possession and, therefore, was maintainable before the civil court; the valuation of the suit was proper and, consequently, dismissed the suit.

It is submitted by learned counsel for the appellant that the trial court fell in error in dismissing the suit filed by the plaintiff; based on the oral and documentary evidence available on record, it was proved that the suit house was constructed in Khasra No. 708, regarding which, the defendants had no right and merely by holding the land falling in Khasra No. 709, which is factually incorrect, the trial court could not have dismissed the suit filed by the plaintiff; from the documents of the defendants themselves, it was proved that on the western side of the road Khasra No. 708 was in existence and, therefore, the finding recorded by the trial court that the Khasra No. 708 was situated on the eastern side of the road is factually incorrect, which has resulted in grave error in the impugned judgment; the statement of PW-6 Patwari has not been properly construed, which has resulted in grave error; the possession and ownership of the plaintiff-appellant is well proved on record and, therefore, the judgment impugned deserves to be quashed and set aside and the suit deserves to be decreed in toto.

Learned counsel for the respondent vehemently opposed the submissions made by learned counsel for the appellant. It was submitted that trial court has thoroughly examined the oral and documentary evidence available on record and has rightly come to the conclusion and dismissed the suit filed by the appellant-plaintiff as the plaintiff filed to show either the title or the possession of the suit property and the same does not call for any interference by this Court. It was submitted that there was variation in the area of suit property as claimed in the plaint, in the oral statement of plaintiff and his witnesses. The documents said to be relied on by the plaintiff themselves disproves his case and, therefore, the appeal deserves to be dismissed.

I have considered the rival submissions and have perused the impugned judgment as well as the record of the trial court.

The plaintiff in the suit filed on 10.01.1997 indicated the area of the disputed plot as 75 feet from north to south and 95 feet from east to west. In the plaint except for giving out the boundaries in para-1 of the plaint and claiming his possession over the suit property, no reference was made regarding the location of the suit property in Khasra No. 708 and the fact that he had in the past sold his share in the agriculture land except for the suit property.

In the written statement, the plea raised by the defendants pertained to the fact that the suit property was part of Khasra No. 709 and having sold all his right, title and interest in the said land, the plaintiff was not entitled to any relief. A plea was also raised that between the plaintiff''s land and the road, which was situated on the eastern side of the agriculture land, there was no Sivaya Chuck (Government) land.

In the oral evidence, the plaintiff as PW-1 gave out the area as 95 X 78 feet and claimed that the construction was done by him 10-11 years back. In the cross-examination, he admitted that he was working as Accountant for over 35-40 years and had worked at Pali for 4 years, at Jodhpur for 15-16 years and at Balotara for 15-16 years, that he has sold his agriculture land to Patasi Devi, Vimla and Sukhiya in 1996 and had no share in the agriculture land and then went on to claim that the land in Khasra No. 708 was in his name; produced (Ex.-2 Jamabandi), which stood in name of State Government stated ignorance about the area of Khasra No. 708 and also produced Jamabandi (Ex.-3). He also admitted that he did not file any FIR regarding the goods stolen by his brothers and that he had not filed any documents showing his title.

Devaram -PW-2 claimed that the size of the house was 80 X 100 feet and on date of his statement claimed that he had raised construction 20 years back. In cross-examination, nothing material came out.

Nahararam -PW-3, who is said to be the mason, who allegedly constructed the house claimed that he constructed the house 20 years back.

Gajendra Singh -PW-5 admitted that he had borrowed Rs. 2,500/- from the plaintiff and has not paid the same back.

Chhelaram -PW-6 Patwari, on whose statement much reliance was placed by learned counsel for the appellant, stated that he joined as Patwari at Village -Siriyari on 02.02.2003 (his statement was recorded on 07.03.2003). The plaintiff''s house was situated in Khasra No. 708, which was Gairmumkin Magri and was Sivaya Chuck land. He claimed that Khasra No. 708 was admeasuring 250 feet from north to south and 70 feet from east to west and its area was 16.40 Air. He was asked question about initiating proceedings under Section 91 of the Land Revenue Act regarding the land in dispute, which was claimed as Government land to which he stated that proceedings have been initiated.

On behalf of the defendant DW-1 Vardhram stated that Khasra No. 708 had been wrongly indicated in Map (Ex.-A/1) and instead Khasra No. 708 was situated on the western side of the road and was part of their Khatedari.

DW-2 Sonaram stated that he had constructed the suit property 8-10 years back at the instance of Mangilal and stated that he did not know Khasra wherein the construction was done.

DW-4 Mangilal also stated that he had raised construction 10-12 years back.

From the evidence led by the parties, the claim of the plaintiff-appellant has been very specific that though he has sold all his holding in Khasra No. 709, the suit property admeasuring 75 X 95 feet was situated in Khasra No. 708, which though a Government land was in his possession. It would be seen from the statement of PW-6 that he indicated the area of Khasra No. 708 at 250 X 70 feet based on the official documents available with him. Even in the document (Ex.-2 Jamabandi), the area of Khasra No. 708 has been indicated at 0.1644 hectare and most interestingly in the document (Ex.-3) produced by the plaintiff, which is Khasra Parivartit pertaining to the year 2000-2001 i.e. after filing of the suit, the area in Khasra No. 708 in plaintiff''s possession in the nature of house has been indicated as east to west 27 and north to sought 16, however, as to whether the said 27 and 16 were Feet or Gaj is not known.

From the above evidence available on record, it is apparent that while the plaintiff claims the area of the suit property as 75 X 95 feet falling within Khasra No. 708; from the statement of PW-6, the Patwari and the document (Ex.-3) produced by the plaintiff, which document came into existence during the pendency of the suit, it is apparent that on the one hand land admeasuring 95 feet east to west was not even available in Khasra No. 708 and the document (Ex.-3) only shows an area of 27 X 16, which figures even if are taken as Gaj and are converted into feet comes to 67.5 X 40 feet only and in that view of the matter the entire story sought to be made out by the plaintiff to claim possession and ownership of the suit property and its situation in Khasra No. 708 falls to be ground and is wholly baseless.

Besides the above, the available evidence on record also does not support the case of the plaintiff inasmuch as there is much contradiction in the area of the suit property as claimed in the plaint, plaintiff''s oral and documentary statement and that of his witnesses. Further, the point of time when the construction took place also there is conflicting version of plaintiff and its own witness. Admittedly, the plaintiff-appellant has sold all his agriculture holding, which was situated in Khasra No. 709 and according to the map (Ex.-A/1), the said Khasra was surrounding Khasra No. 708.

The plea regarding construction in Khasra No. 708 has apparently been raised only with a view to same how claim a foot hold in the suit house. The statement of PW-6 Patwari also, who had admittedly joined only 6 weeks'' back from the date of his statement before the trial court to claim personal knowledge regarding the existence of the house etc. and his evasive replies regarding action under Section 91 of the Land Revenue Act regarding the land situated in Khasra No. 708, which was admittedly Government agriculture land, does not evoke any confidence and cannot be relied on in support of plaintiff''s suit. Further, the conduct of not filing FIR despite making allegations of theft is also quite unnatural.

In view of the above discussion, the findings recorded by the trial court cannot be said to be perverse and/or incorrect, so as to require interference by this Court and as such the same are upheld.

Consequently, there is no substance in the appeal filed by the appellant and the same is, therefore, dismissed with costs.