Lrs Of Gopi And Ors vs Kishan Lal And Ors

The instant first appeal has been preferred by the appellant-plaintiffs, being the legal heirs of Gopi, for assailing the judgment cum decree dated 13.03.2018 passed by the learned Additional District Judge No.2, Bhilwara in Civil Original Suit No. 41/2012, whereby the suit for declaration and permanent injunction filed by the plaintiffs was dismissed.

Heard and perused the impugned judgment.

The plaintiffs filed a suit claiming ownership, title and possession on a plot ad-measuring 30 yards X 45 yards in the Village Gadhpachali Amli Tehsil & District Bhilwara. They averred in the plaint that the patta of the plot in question was issued in the name of their relative Kela S/o Bhagu Balai, who died intestate and thus the petitioners being his legal heirs were entitled to stake a claim thereupon. They were in possession over the plot in question since the year 1974. The defendants forcibly took possession of the plot of the plaintiffs on 16.06.2012 and started raising a construction thereupon. The construction material stocked on the plot by the petitioner was stolen. The defendants misbehaved with the plaintiffs No. 2 Smt. Deu for which an FIR was lodged. The plaintiffs relied upon the patta dated 14.12.1974 issued in favour of Kela to buttress the reliefs claimed in the suit.

The defendants disputed the contentions made by the plaintiffs in their claim by filing a written statement stating that the plaintiffs had no property in the Village Aamli. The description of the plot as set out in the plaint did not match with the surroundings. The plot in question was owned by Pratap Gadri who sold the same to the defendant No. 4 and was never allotted to Kela. The trial Court framed the following issues for consideration:-

"1. आया दावे के पैरा सं. 2 में वर्णित जायदाद का निःशुल्क पट्टा केला पुत्र भागु बलाई के पक्ष में दिनांक 14.12.1974 को विधिवत् रूप से जारी किया गया था ?

- वादीगण

आया वादीगण विवादित भूखण्ड के पट्टाधारी/स्वामी केला के प्रथम श्रेणी के वारिसान होने तथा केला के लाऔलाद फौत होने से मालिक/काबिज हो गए है तथा इस आशय की वांछित उद्घोषणा कराने के हकदार है ?

- वादीगण

आया वादीगण का विवादित जायदाद पर कब्जा है जिस कारण वांछित स्थाई निषेधाज्ञा का अनुतोष प्राप्त करने का हकदार है ?

- वादीगण

आया विवादित संपत्ति कृषि भूमि होने से इस न्यायालय को सुनवाई का क्षेत्राधिकार नहीं है ?

- प्रतिवादीगण

आया दावा कम न्यायशुल्क पर पेश होने से खारिज होने योग्य है ?

- प्रतिवादीगण

आया दावा मियाद अन्दर है ? - वादीगण

अनुतोष ?"

Evidence of the parties was recorded in support of the issues. The trial Court concluded the issue No.1 against the plaintiffs holding that they could not lead any evidence to show that they were the legal heirs of Kela. The plaintiff's witness No.2 Smt. Deu admitted that possession over the suit property was of Narayan Kumhar and his wife Roshni. The defendant No. 4 Smt. Roshni claimed that she had purchased the land in question which was an agricultural land and that she was in possession thereupon ever since she purchased the same. DW-2 Narayan Kumhar also gave the same statement. The trial Court concluded the issues against the plaintiff's and in favour of the defendants observing that even the plaintiff's witness Smt. Deu herself admitted that the possession over the land in question was that of Narayan Kumhar and his wife Roshni. The so called police report which was filed by the plaintiffs against the defendants was not exhibited in the plaintiffs evidence. No original file pertaining to the patta (Ex.1) was submitted on record nor was any officer from the Panchayat examined in evidence. The trial Court called for a report from the Tehsildar, Bhilwara regarding the disputed premises and came to the conclusion that location of the land described in the patta (Ex.1) and that of the land owned by the defendants was different. The issue No.2 regarding plaintiffs' entitlement to the land in question as being the legal heirs of Kela was also decided against them holding that Kela's wife Smt. Sohani and his grand son Bardu were alive and despite that they were not impleaded in the suit. No succession certificate was filed by the plaintiffs so as to establish their claim that they were the legal heirs of Kela. After holding so, the trial Court proceeded to dismiss the suit filed by the plaintiffs.

I have appreciated the submissions advanced at Bar and have gone through the material available on record.

Ex facie, it is clear that plaintiffs staked the claim on the plot in question alleging that they were the legal heirs of Kela. However, no succession certificate was filed by them on the record of the suit. Admittedly, Kela's grandson Bardu and his wife Smt. Sohani were alive when the suit was filed but they were intentionally not impleaded as parties in the suit. Thus, the plaintiffs failed to establish, by any plausible evidence that they had any right to stake a claim on Kela's land. Rather, after thorough appreciation of the evidence available on record, learned trial court recorded an apropos finding in the impugned judgment that the description of the land as set out in the patta (Ex.1) did not match with the description/location of the land in possession and owned by the defendants. The plaintiffs did not examine any witness from the Panchayat/Tehsil to prove that the land under the Patta and the land in possession of the defendants was one and the same.

In this background, I am of the firm opinion that the learned trial Court appreciated the evidence available on record in an absolutely just and apropos manner and rightly rejected the suit filed by the plaintiff-appellants for declaration and permanent injunction because he failed to establish any of the issues for defendants. The impugned judgment does not suffer from any error, either factual or legal warranting interference therein.

Hence, the appeal is dismissed being devoid of merit. Decree be prepared accordingly. Record be returned to the trial Court forthwith.