Nawab Singh and Others vs Bhagwat Singh and Others

Rohit Arya, J.—S.A. No. 962/2006 by defendants'' under section 100 CPC is directed against the judgment and decree dated 28/10/2006 in civil 100 CPC is directed against the judgment and decree dated 28/10/2006 in civil appeal No. 2.A/2006 by III Additional District Judge (Fast Track Court), Dabra District Gwalior.

The aforesaid two civil appeal Nos. 2A/2006 and 3A/2006 have been decided by the impugned common judgment and decree dated 28/10/2006.

The aforesaid two civil appeal Nos. 2A/2006 and 3A/2006 were filed against the common judgment and decree dated 24/06/2004 in civil suit No. 92A/1994 by II Civil Judge, Class II, Dabra, District Gwalior.

Plaintiff''s suit for declaration, recovery of possession and mesne profits has been dismissed and counterclaim filed by the defendants'' No. 1 to 4 for declaration of title and possession has also been dismissed by the trial Court.

As S.A. Nos.962/2006 and 167/2007 arise out of common judgment and decree passed by the first appellate Court, they shall govern disposal by this common judgment.

Facts necessary and relevant for disposal of these two appeals are to the effect that suit land; an agricultural land described in paragraph 3 of the impugned judgment by the first appellate Court was claimed to be of the joint ownership of one Laluram alias Lalluva s/o Jamna Gadariya and Pohap Singh s/o Baldev Singh.

Pohap Singh had died intestate on 26/07/1984. Therefore, plaintiff - Nawab Singh asserted to have succeeded to half share of the suit land under the Hindu Succession Act as he claimed that Amol Singh, his father is real brother of Pohap Singh.

Defendants'' No. 1 to 4 have filed counterclaim and they denied title and possession of the plaintiff, Nawab Singh. It is asserted that the suit land was of the ownership and possession of the then zamindar, Shrikrishnachandra Bhatt s/o Damodar Prasad Bhatt and the same was transferred in favour of Dev Singh s/o Jagjit Singh, the father of defendants'' No. 1 to 4 on patta much prior to Samvat 2007 (year 1950). Since then, Dev Singh and thereafter, the defendants'' No. 1 to 4 have all along been in continuous, uninterrupted and peaceful possession over the suit land. They have developed the suit land and are ploughing field and harvesting crops. Neither the plaintiff nor the defendants'' No. 5 to 10 have any right, title and interest over the suit land. Besides, defendants'' No. 1 to 4 have also filed written statement and denied plaint allegations.

Defendants'' No. 5 to 10 have filed written statement and denied plaint allegations. They claimed to have title and possession over the suit land with the prayer for partition of the suit land.

On the aforesaid pleadings, trial Court framed issues and allowed parties to lead evidence. On critical evaluation of the evidence on record, the trial Court held the plaintiff failed to establish that Amol Singh, father of plaintiff was real brother of Pohap Singh. Therefore, the trial rejected the claim of the plaintiff to have succeeded to the suit land left by Pohap Singh having died intestate on 26/07/1984. The trial Court has also rejected the counterclaim as defendants'' No. 1 to 4 have failed to establish that the suit land was of the ownership and possession of the then zamindar, Shrikrishnachandra Bhatt s/o Damodar Prasad Bhatt and the same was transferred to Dev Singh s/o Jagjit Singh. However, defendants'' No. 1 to 4 have been found to be in settled possession of the suit land. Accordingly, trial Court passed the judgment and decree. On appeal, the first appellate Court has discussed the entire evidence on record and concurred with the findings of the trial Court has thereby affirmed the judgment and decree passed by the trial Court. First appellate Court has discussed the oral evidence led by the plaintiff in paragraphs 9 and 10 of the impugned judgment as regards the claim of the plaintiff that Pohap Singh is the real brother of his father, Amol Singh. Plaintiff and his witnesses'' are found to have stated that Pohap Singh and Amol Singh were not real brothers. The plaintiff himself has admitted that the name of father of Pohap Singh was Baldev Singh whereas the name of father of Amol Singh was Mulchand. Accordingly, Pohap Singh and Amol Singh were not real brothers. That apart, P.W.3 Barosilal has admitted that Amol Singh and Pohap Singh were in the relationship of MAMAPHOOPA (Maternal uncle - husband of father''s sister). As such, the plaintiff Nawab Singh was not in direct relationship of Pohap Singh. Accordingly, the first appellate Court affirmed the finding of the trial Court that Pohap Singh and Amol Singh were not real brothers. Therefore, the plaintiff has no right to claim succession to the suit land being distant relationship and having no linage of succession under the Hindu Succession Act.

As regards counterclaim, the first appellate Court has found that there is no evidence on record that the suit land was originally of the ownership and possession of the then zamindar, Shrikrishnachandra Bhatt s/o Damodar Prasad Bhatt. Likewise, there is no patta on record allegedly executed by the then zamindar, Shrikrishnachandra Bhatt s/o Damodar Prasad Bhatt in favour of Dev Singh s/o Jagjit Singh, father of defendants'' No. 1 to 4. Therefore, for want of evidence, the claim as regards right and title over the suit land has been rejected. However, upon critical evaluation of the oral and documentary evidence on record from paragraphs 12 to 14 found that the defendants'' No. 1 to 4 are in possession over the suit land; settled possession for more than 2530 years. Accordingly, the suit has been held to be barred by time as the same was found to be filed beyond statutory period of 12 years under Article 65 of the Schedule attached to the Limitation Act, 1963 and plaintiff has not taken any steps for recovery of possession of the suit land within limitation and accordingly; both the appeals have been dismissed by the first appellate Court confirming the judgment and decree passed by the trial Court.

Having gone through the concurrent impugned judgments rendered by the Courts below and the record of the case, this Court is of the opinion that both the Courts below have recorded pure findings of fact based on proper appreciation of the evidence on record. The findings so recorded are absolutely impeccable in nature. The entire gamut of matter is in realm of facts. No question of law, much less substantial question of law arises warranting interference under section 100 CPC.

Both the appeals sans merit and are accordingly dismissed.