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Ram Saran & Others v. Jaswant Singh & Another - SECOND APPEAL No. 659 of 2005 [2005] RD-AH 2106 (25 August 2005)


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"Court No.4"

Second Appeal No. 659 of 2005.

Ram Saran (since deceased)

and others                                                                                          ........Appellants/



Jaswant Singh and another                                                               ....Respondents/



Hon'ble Anjani Kumar, J.

The appellants, who are heirs of Ram Saran (since deceased), have filed this second appeal against the judgment and decree dated 7th May, 2005, passed by the lower appellate Court in civil appeal no.69 of 2002, arising out of suit no. 1172 of 1994.  Ram Saran, the father of the appellants in the present second appeal, filed suit no. 597 of 1991 against the defendants, namely, Jaswant Singh and another, who are sons of Kanchan Singh for the relief that the defendants be restrained by a permanent injunction in interfering with the plaintiffs' peaceful possession over the land in dispute.  The defendants of suit no. 597 of 1991, namely Jaswant Singh and another have also filed a suit being suit no. 1172 of 1994 against the plaintiffs of suit no. 597 of 1991 for the relief to grant injunction that the possession of plot in dispute be delivered to plaintiff of suit no. 1172 of 1994 i.e. the defendants of suit no. 597 of 1991.

In short, the plaintiffs/appellants' case is that the property in dispute over which the plaintiffs are in possession as owner, is being used by the plaintiffs of suit no. 597 of 1991 as Nauhara and this property is the joint Hindu Family Property, which was purchased in the name of Kanchan Singh, brother of father of the present appellants from the joint Hindu Family Funds on 17th December, 1973 and the sale deed is in the name of Kanchan Singh.  That there was a family partition between the Ram Saran and Kanchan Singh and the land in dispute came in the share of  Ram Saran by way of family partition on 19th April, 1979 and a memorandum was also prepared on the same day in which both the plaintiffs ad the defendants have signed.  According to the said memorandum, the land in dispute was registered by a sale deed on 17th December, 1985, which came in the share of Ram Saran, the father of the present appellants.

On the pleadings of the parties, the trial Court framed the following issues :-

"1. Whether the plaintiffs are the owner in possession of the property in dispute shown in the map by letters 'A', 'B', 'C', 'D'?  If so, its effect?

2. Whether the suit has been under valued and  the proper Court fees has not been paid?  If so, its effect?

3. Whether the plaintiffs are entitled to what relief?

4. Whether the plaintiffs on the basis of the aforesaid allegations have acquired the rights by adverse possession over the property in dispute?"

The trial Court consolidated both the suits, namely, suit no. 597 of 1991 filed by the present appellants and suit no. 1172 of 1994 filed by the present defendants and the trial Court after recording a finding in favour of the defendants in suit no. 597 of 1991 to the effect that memorandum dated 17th December, 1985 has not been proved and therefore the suit no. 597 of 1991 is liable to be dismissed and the same is dismissed, whereas the suit no. 1172 of 1994 was decreed in part.

Aggrieved by the order passed by the trial Court, the plaintiffs (appellants in the present appeal) preferred an appeal being appeal no. 69 of 2002 against the judgment and decree in suit no. 597 of 1991 and also an appeal against the decree in suit no. 1172 of 1994.  The present second appeal, as is clear from the memorandum of appal is confined only to the judgement of the lower appellate Court, so far as it confirm the decree passed by the trial Court in suit no. 597 of 1991 and no second appeal has been filed against the decree passed in suit no. 1172 of 1994 and confirmed by the lower appellate Court vide its judgment and order dated 7th May, 2005.  Learned counsel appearing on behalf of the appellants submitted that the findings arrived at by the trial Court with regard to the appellants' possession over the property in dispute suffer from the error and deserves to be interfered with by this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure, because both the Courts below have taken wholly erroneous view in holding that the theory set up by the plaintiffs that the property being the joint Hindu Family cannot be accepted as Kanchan Singh was not Karta of the joint Family being not eldest son.  This finding of Kanchan Singh being not the Karta of the joint Hindu Family, it has been confirmed by the lower appellate Court, in my opinion, has not been demonstrated to be suffering from any error, much less an error apparent on the face of record.  Learned counsel for the appellants contended on the question as to whether the documents, which require to be registered under Section 17 of the Indian Evidence Act, if not registered can be said to be admissible for collateral purposes under Section 49 of the Registration act.  Both the Courts below have recorded categorical findings with regard to the document and I do not find any ground for interference with the aforesaid document and to me it appears that there is no substantial questions of law, therefore on the facts and circumstances of the case, which may warrant an interference by this Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure.

In view of above discussions, this second appeal has no force and is accordingly dismissed.  However, the parties shall bear their own costs.

Dated: 25.08.2005.



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