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Brij Pal Sharma & Another v. Daulat Ram (Dead) & Others - SECOND APPEAL No. 451 of 2007 [2007] RD-AH 8753 (9 May 2007)


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                                                                                COURT NO.27


Brijpal Sharma and another...............................Plaintiff/Appellants.


Daulat Ram and others....................................Defendant/Respondents.

Hon'ble Mrs. Poonam Srivastav, J.

Heard learned counsel for the appellants.

This is plaintiff's second appeal against the judgment and decree dated 18.4.2007 passed by the Additional District Judge F.T.C. No. 3, Gautam Budh Nagar in civil appeal no. 11 of 2004 confirming the judgment and decree dated 7.9.2004 passed by the Civil Judge (Junior Division) Gautam Budh Nagar in original suit no.1372 of 1992.

The plaintiffs claimed that the suit property shown in the plaint map having an area of 400 Square yards situated in village Chalera Bangar, Pargana and Tehsil Dadri, District Ghaziabad belongs to the plaintiff/appellants and they are in possession since the time of their ancestors. The property is being used for residential as well as agriculture purposes. The defendant/respondents have no concern with the property but they are trying to overpower the plaintiff/appellants and dispossess them from the property in question illegally. The defendants contested the suit claiming their possession over the property. It was also contended that the previous suit no. 119 of 1985 was contested between the ancestors of the plaintiffs and defendants, therefore, subsequent suit was not maintainable. The trial court framed as many as eight issues.

Issue no.4 was whether the suit is barred by principle of res-judicata? The trial court though came to a conclusion that the suit was barred by res-judicata as the suit no. 119 of 1985 was between the ancestors of the same parties and in respect of the same property. However, evidence was led by both the parties and after hearing arguments of the parties, other issues were decided on merits as well. Issue no.1 was whether the plaintiffs are owner in possession of the disputed property. Claim of the plaintiffs rests on unregistered Will dated 1.1.1982 in respect of the property, which originally belonged to ancestors of Tika Ram. The court declined to accept claim on the basis of the Will as neither marginal witness nor scribe of the Will were produced. P.W. 1 admitted that he has no knowledge  whether the witnesses are still alive or not. The trial court concluded from the admission of P.W. 1 that no effort was made to trace out the witnesses by the plaintiffs.

Submission of the counsel for the appellants is that the defendant claimed that the property in question belongs to Gaon Sabha and the plaintiffs have no right or title since the Will was not disputed by the defendants. The trial court illegally failed to place reliance on recital of the Will and record findings against the plaintiffs. Findings of the trial court against the plaintiffs on issue no.1 was confirmed by the lower appellate court, suit as well as appeal was dismissed.

Sri K.K. Arora, Advocate, has laid emphasis on the fact that since boundary of the property shown in the present suit as well as in the precious suit no. 119 of 1985 was not the same, it could not be concluded that the suit was barred by res-judicata. Even if the arguments of the counsel for the appellants is accepted to be correct, the suit was not barred by res-judicata, I cannot lose sight of the fact that the courts below permitted the plaintiffs to lead evidence and record findings on merit. The suit was not thrown out on the preliminary objection of res-judicata, therefore, substantial question of law regarding res-judicata raised by the counsel does not arise in the instant second appeal.

Next argument of the counsel for the appellants is that the Will was neither disputed nor the fact that the property belonged to Tika Ram, who was ancestor of the plaintiffs was denied therefore, the courts below were liable to accept the contention of the plaintiffs, specially since the defendants were not able to show how did they derive title. No documentary evidence in support of the contention was brought before the Court. I am unable to accept this argument on behalf of the appellants. No doubt, the courts below recorded findings that the defendants have not been able to establish that the property belonged to Gaon Sabha but the plaintiffs cannot get any benefit from shortcomings of the defendants.  The plaintiffs have to stand on their own legs. In the present case, two courts have categorically held that the title of Tika Ram was not established by means of any evidence but for the Will, which was also not accepted for the reason that neither marginal witness nor scribe of the Will were produced. Counsel for the appellants submits that it was not a probate case, the Will was not required to be proved, cannot be accepted because only basis of  title to the disputed property was the Will executed by Tika Ram.  The plaintiffs had to prove source of their title.

Two courts came to a conclusion  and recorded findings of fact that the plaintiffs were not able to establish their title and possession and, therefore, declined to grant relief of declaration and injunction, this cannot be interfered. Substantial questions of law raised in the instant second appeal are not worth consideration. The phrase "Substantial questions of law" though not defined in the Code qualifies that the question of law must have substance and also importance or considerable. The plaintiffs are trying to take benefit on account of the reason that the defendant's case was that the property belongs to Gaon Sabha and they are in possession, which they have not been able to prove and, therefore, the suit was liable to be decreed, cannot be accepted. The burden cannot be shifted on the shoulders of the defendants. It is settled principle of law that a point of law, which admits of no two opinions may be proposition of law but cannot be substantial question of law. This has been held by the Apex Court in the case of Santosh Hazari Vs. Purushottam Tiwari (2001) 3 SCC page 179.  The aforesaid decision has been followed subsequently in a number of subsequent decisions.

For the reasons discussed above, I do not find any substantial questions of law worth interference in exercise of jurisdiction under Section 100 C.P.C. The second lacks merit and is, accordingly, dismissed.  Cost on parties.

Dt. 9.5.2007



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