Major Singh and others vs Mohinder Kaur and others

L.N. Mittal, J.

CM No. 5061.C of 2012

For reasons mentioned in the application which is accompanied by affidavit of counsel, delay of 72 days in refiling the appeal is condoned. The application stands allowed accordingly.

CM No. 5062.C of 2012

Allowed as prayed for.

RSA No. 1837 of 2012

Plaintiffs Major Singh etc., having been non-suited by both the courts below, have filed this second appeal. In the suit, plaintiffs/appellants have challenged alleged exchange of land between the parties. The said exchange was recorded vide report No. 365 dated 19.6.1982 having allegedly been effected by plaintiffs no. 3 and 4 and Sadhu Singh (father of plaintiffs no. 1 and 2) with Gamdoor Singh defendant no. 7 and Birinder Singh predecessor of defendants no. 1 to 6. Consequent exchange mutation no. 6698 dated 26.7.1982 has also been challenged. Decree suffered by defendant no. 7 in favour of his sons-defendants no. 8 to 10 regarding part of the suit land has also been assailed in the suit along with consequential mutation. Sale of part of the suit land during pendency of the suit by defendants no. 1 to 6 to Ranjit Kaur etc. was also assailed. The plaintiffs alleged that plaintiffs no. 3 and 4 and Sadhu Singh (predecessor of plaintiffs no. 1 and 2) never effected alleged exchange and exchange report no. 365 dated 19.6.1982 does not bear their thumb impressions.

Defendants no. 1 to 10 broadly denied the plaint averments and pleaded that the impugned exchange was voluntarily effected between the parties. Grounds pleaded by the plaintiffs to challenge the exchange were controverted. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Mansa vide judgment and decree dated 1.12.2010 dismissed the plaintiffs'' suit. First appeal preferred by plaintiffs has also been dismissed by learned Additional District Judge, Mansa vide judgment and decree dated 29.9.2011. Feeling aggrieved, plaintiffs have filed this second appeal.

I have heard learned counsel for the appellants and perused the case file.

Counsel for the appellants vehemently contended that plaintiffs/appellants never effected the alleged exchange. It was submitted that both the parties are co-sharers in the lands under exchange i.e. land of village Hero Khurd which is in exclusive possession of the plaintiffs and the suit land of village Hero Kalan which is in exclusive possession of the defendants and therefore, the alleged exchange never came to the knowledge of the plaintiffs.

I have carefully considered the aforesaid contention but the same cannot be accepted. Only plaintiff no. 1 Major Singh and plaintiff no. 4 Guddi appeared as witnesses on behalf of the plaintiffs. Both of them admitted that defendants are in exclusive possession of the suit land for the last 28/30 years i.e. since the time of impugned exchange. In the plaint, however, plaintiffs have alleged that defendants had recently taken possession of the suit land. However, statements of plaintiffs no. 1 and 4 themselves have falsified their version in this regard. On the other hand, the fact that defendants came in exclusive possession of the suit land since the time of impugned exchange would strengthen the case of the defendants that the impugned exchange was in fact effected between the parties.

Plaintiff no. 1 also stated in the witness box that they knew about the impugned exchange report for the last 20/22 years. However, in the plaint, the plaintiffs falsely alleged that they learnt of the exchange a few days before the filing of the suit which was filed on 30.3.2005. The plaintiffs made this false averment to strengthen their claim and to bring the suit within limitation. However, their whole claim in this regard was exposed in evidence. The fact that the plaintiffs despite having knowledge of the impugned exchange did not challenge the same for 20/22 years would again depict that the parties in fact effected the exchange in question. Thus whole case of the plaintiffs is demolished by their own evidence.

In addition to the aforesaid, the plaintiffs alleged that the impugned exchange report does not bear thumb impressions of plaintiffs no. 3 and 4 and father of plaintiffs no. 1 and 2. However, the plaintiffs did not get the said disputed thumb impressions on the impugned report compared with specimen/standard thumb impressions of plaintiffs no. 3 and 4 and of father of plaintiffs no. 1 and 2. Science of comparison of fingerprints is perfect science. In spite thereof, the plaintiffs did not dare to lead available scientific material evidence to substantiate their version. Consequently, strong adverse presumption arises against the plaintiffs.

Self serving bald oral statements of plaintiffs no. 1 and 4 only are not sufficient to prove their case and to set aside the impugned exchange which had taken place almost 23 years before the filing of the suit to the knowledge of the plaintiffs themselves. The suit is also barred by limitation to challenge the said exchange. Concurrent finding recorded by the courts below to non-suit the plaintiffs, therefore, does not suffer from any perversity or illegality nor the same is shown to be based on misreading or misappreciation of evidence. On the other hand, said finding is the only reasonable finding that can be arrived at on appreciation of the evidence on record. Therefore, the said finding does not call for any interference. No question of law much less substantial question of law arises for adjudication in this second appeal. The appeal is completely frivolous and meritless and is, therefore, dismissed in limine.