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Harnarayan v. Mani Gupta & Another - SECOND APPEAL No. 98 of 2007 [2007] RD-AH 2138 (9 February 2007)


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Court No. 24

Second Appeal No. 98 of 2007

Harnarayan Vs. Malik Gupta & another



Heard the learned counsel for the appellant.

The judgment and decree of the lower appellate court dated 4.11.2006 is under challenge in the present appeal whereby the court below has affirmed the judgment of the trial court and has dismissed the plaintiff-appellant's first appeal.

The appellant-plaintiff filed the suit for permanent injunction with regard to plot No. 1698 area 1.50 acre stating that he happens to be the sole owner in possession of that plot. The defendants are trying to interfere in his possession by way of making encroachment therein. Therefore, the relief for permanent injunction may be granted. This suit has been contested from the side of the respondents-defendants stating that the whole plot No. 1698 did not belong to the plaintiff instead a part of it is the property of the defendants who are in possession thereof. The plaintiff could not be granted the relief of permanent injunction with regard to the entire area of that plot.

The trial court after having recorded the entire evidence of the parties and on the basis of other materials available on record was of the view that the part of the said plot is actually in the ownership and possession of the plaintiff. 11 Decimal area of that plot is a property of the defendants and accordingly the trial court did not find substance in the plaintiff's case and the relief claimed was refused and the suit was dismissed. Against this judgment of the trial court the lower appellate court concurred with the view taken by that court and accordingly affirmed its findings by dismissing the appeal.

The learned counsel appearing for the appellant submits that since the entire area of plot No. 1698 has been recorded in the name of the plaintiff, the courts below have actually erred in not holding the title of the plaintiff over the entire plot No. 1698.

From the perusal of the judgments of both the courts below what finds reflections in its findings is that the evidence, which is factual in nature has been elaborately considered and discussed by them and that the findings of the lower appellate court make it more specific that the plaintiff himself had made admissions in his statement before the trial court that he did not have possession over 11 Decimal area of plot No. 1698 nor he has any title over that area. His name has been wrongly entered into the records over the total land of plot No. 1698. The plaint also states regarding the possession of the defendants over the portion of plot No. 1698. The statement given in one affidavit of the plaintiff being paper No. 3-A on the record where he has shown to have averred that his father had no more any share in the said plot, which had actually come to him. That affidavit though was said to have been obtained by the defendants by deceiving the plaintiff, but the court below has categorically observed on the basis of the material before it that this fact alleged in regard to the said affidavit, being a result of some deception, was not established on the record. All these materials have been elaborately discussed by the lower appellate court while affirming the findings recorded by the trial court. All these observations and findings of the court below are definitely factual and there is hardly any scope for interference against the same in a second appeal under Section 100 C.P.C. Accordingly, in the aforesaid view of the matter, no substantial question of law is available for decision as to occasion the admission of this appeal.

The appeal is without substance. In the result, it fails and is hereby dismissed.




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