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Daryao Singh & Ors. v. Gajraj & Ors. - RSA-1694-2000 [2006] RD-P&H 3320 (19 May 2006)

R.S.A. No.1694 of 2000 -: 1 :-


R.S.A. No.1694 of 2000

Date of decision: May 25, 2006.

Daryao Singh & Ors.



Gajraj & Ors.


Present: Shri R.S. Mittal, Senior Advocate with Shri Sudhir Mittal, Advocate for the appellants.

Shri R.A. Yadav, Advocate for the respondents.

Surya Kant, J.

This regular second appeal, preferred by the defendants, has arisen out of the judgment and decree dated 12th May, 1998 passed by the

Civil Judge (Junior Division), Charkhi Dadri, decreeing the suit for possession qua the suit land, as well as the judgment and decree dated 16th February, 2000 passed by the Additional District Judge, Bhiwani affirming the aforementioned judgment and decree.

The claim as set up by the respondent-plaintiffs was that they along with other shareholders are owners in possession of the suit land measuring 25 kanal 16 marlas, Khatauni No.194 and as reflected in the jamabandi for the year 1987-88, situated within the revenue estate of village Jawa, Tehsil Dadri, District Bhiwani. It was alleged that though the appellant-defendants have no concern whatsoever with the land in question, R.S.A. No.1694 of 2000 -: 2 :-

however, they had started laying stones, bricks, etc., and have, thus, taken unauthorized possession thereof.

Countering the respondent-plaintiffs' claim, the appellants pleaded that though plot No.98 measuring 15 kanal 16 marlas belonged to the respondent-plaintiffs but the land in dispute was not part and parcel of plot no.98. It was averred that the disputed land was of village Jawa upon which they had raised construction from last 150 years. It was also averred that the defendant-appellants were shareholders along with the respondent- plaintiffs though they are now exclusive owners in possession from the time of their great grand-fathers. According to the appellants, one of the plaintiff who was Lambardar of the village, manipulated wrong entries in the revenue record in collusion with the officials of the revenue department and those entries have no effect, whatsoever, over the right of the appellants, who had also become owners by way of adverse possession.

To substantiate their claim, the respondent-plaintiffs produced copy of the jamabandi for the year 1987-88 (Ex.P2), copy of mutation (Ex.P3) and copy of the jamabandi for the year 1992-93 (Ex.P4). In addition, oral evidence comprising of PW1 (Ram Bhagat) and PW2 (Hawa Singh) was also led. On the other hand, the appellants produced site-plan (Ex.D1), certified copy of khatauni pamaish (Ex.D2), certified copy of the order of Settlement Officer (Ex.D3), copy of report dated 3.4.1993 (Ex.D4) and certified copy of the field-book (Ex.D5). They also examined as many as seven witnesses.

Relying upon the entries in the revenue record, both the courts have concurrently held that the respondent-plaintiffs have proved that they along with other shareholders are owners of the suit land. It has been R.S.A. No.1694 of 2000 -: 3 :-

further held that the appellant-defendants have not led any evidence either to show their ownership or that they are in possession of the suit land since the time of their great grand-fathers, as claimed by them. As a matter of fact, the learned first appellate court, on consideration of the khatauni pamaish (Ex.D2) and demarcation report dated 3rd April, 1993 (Ex.D4) has

observed that the appellants and others are in unauthorized possession over a portion of the suit land which is owned by the respondent-plaintiffs. On the strength of these findings, the courts below have decreed the suit for possession in favour of the respondent-plaintiffs and have directed the appellants to hand over the vacant possession thereof which has been taken by them unauthorizedly. Aggrieved, the appellant-defendants have approached this court.

I have heard Learned Counsel for the parties at length and have also perused the record, which was summoned.

Shri R.S. Mittal, Learned Senior Counsel for the appellants, though has not pressed the plea of ownership by way of adverse possession, he, however, contends that the land in dispute is a shamilat deh and the appellants being habitants of the village, have equal right to enjoyment of the suit land. It is contended by him that the respondent-plaintiffs have deliberately withheld a material piece of evidence, namely, Pherhist Istemaal Milkiat (list of user ownership), which would have shown that the appellants are also co-sharers in the shamilat land. It is also contended by him that no evidence for identification of plot No.98 and/or its correct demarcation at the spot, has been led by the respondent-plaintiffs.

On the other hand, Shri Yadav, Learned Counsel for the respondents, contends that the appellants cannot be permitted to raise the R.S.A. No.1694 of 2000 -: 4 :-

plea that the land in question is shamilat deh, as no such plea was taken in the written statement filed before the courts below. It is contended by him that both the courts have not found the appellants to be co-sharers.

According to learned counsel, the revenue record produced by the respondent-plaintiffs unequivocally proves that they and other shareholders are owners of the suit land and the appellants have not led any evidence to rebut the same.

After hearing Learned Counsel for the parties, I do not find any merit in this appeal.

Whether the land in question is shamilat deh or not, is a mixed question of law and facts and in the absence of any plea to this effect taken by the appellants in the written statement or any evidence by either of the parties, the same cannot be permitted to be raked up first time in this regular second appeal. Similarly, no evidence, whatsoever, has been led by the appellants to prove that they are co-sharers along with the plaintiffs in the subject land. The very fact that they took the plea of adverse possession, impliedly shows that they admitted the plaintiff-respondents to be owners of the suit land, though they claimed to have retained its possession hostile to the interest and right of the true owners. The said plea, however, did not find favour with the courts below and has not been pressed before this court.

On the other hand, from the revenue record produced by the respondent- plaintiffs, it stands established that they along with other shareholders are owners of the suit land. The evidence on record, especially the demarcation report, further suggests that the appellants have taken possession of a part of plot no.98 recently when they brought some bricks and stones, etc. at the spot and started raising construction. This fact, however, belies the R.S.A. No.1694 of 2000 -: 5 :-

appellants' stand that they are in possession from the last over 150 years.

As far as the identification and correct demarcation of plot no.98 is concerned, it may be noticed that even the appellants did not dispute ownership of the respondent-plaintiffs qua the said plot number. On the basis of the reports of the revenue authorities and the order passed by the Assistant Collector, there appears to be no dispute for identification or demarcation of the khasra number, more so when it was never the case of the appellants that they are in possession of some other plot number.

Above-all, from the above discussion, it is apparent that the questions sought to be raised in this appeal are pure questions of fact in relation to which both the courts have concurrently returned their findings, warranting no interference by this court.


May 25, 2006. [ Surya Kant ]

kadyan Judge


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