Himachal Pradesh High Court
Raj Dulari And Ors vs Rajinder Singh on 23 August, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.87 of 2005
Date of Decision: 23.8.2016
_______________________________________________________
.
[
Raj Dulari and Ors. ......Appellants.
Versus
Rajinder Singh ....Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes
of
For the Appellants: Mr. Dilip K. Sharma, Advocate.
For the respondent: Mr. Ajay Sharma, Advocate, for the
rt respondent.
_________________________________________________________
Sandeep Sharma, J. (Oral)
Instant regular second appeal filed under Section 100 of CPC is directed against the judgment and decree dated 4.12.2004, passed by the learned District Judge, Una, HP, in Civil Appeal No. 97/2003, affirming the judgment and decree dated 15.9.2003, passed by learned Sub Judge, Ist Class, Court No.II, Amb, District Una, HP, in Case No. 187/2000, whereby suit filed by the present respondent (hereinafter referred to as "the plaintiff") has been decreed for possession of the suit land by demolishing constructed area marked by letters A to G in site plan Ext.PW1/A.
2. Briefly stated facts as emerged from the record are that the Plaintiff filed suit for decree of possession in the Court of learned Sub Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -2-Judge, Ist Class, Court No. II, Amb, District Una, HP, qua area measuring 0-00-65 Hects. bearing khewat No. 324 min, Khatauni No. 634, Khasra .
No.400 as per copy of Missal Hakiat for the year 1989 - 90 situated in Up Mohal Ghanari Brahminan Changan, Tehsil Amb, Distruct Una, H.P., (In short 'the suit land') by demolishing constructed area as shown yellow in colour marked by letters A to G. The plaintiff claimed that the of suit land was owned and possessed by his father namely deceased Partap Singh along with other co-sharers and has been succeeded by him along with other brothers being sons and LRs of Devinder rt predeceased son of Partap Singh. Plaintiff claimed that defendant has no right, title and interest in the suit land and defendant in connivance with the lower revenue staff got entered his name in the revenue record as Kabiz through missal No. 270/88 of S.N. T. Gagret at his back and later on about 10 years' ago forcibly at his back raised construction over the portion marked by letters A to G in the site plan.
Defendant was called many a times to admit the claim of the plaintiff but same was not admitted and a week ago, he refused to admit the claim of the plaintiff and thus, plaintiff was compelled to file the suit, whereas the defendant by way of written statement, while refuting the claim put forth on behalf of the plaintiff, took specific objections qua the maintainability, non-joinder of necessary party, estoppel, limitation and locus-standi. Defendant denied the case of the plaintiff in toto by ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -3- stating that during settlement in the village, plaintiff's father with the active connivance of the settlement field staff got prepared the wrong .
record by increasing the Karukans of the adjoining land and procured wrong record of the ownership in his favour. Moreover, the defendant constructed a shop over the suit land in the year, 1980, in the presence of the plaintiff, who never objected qua the same till filing of the suit.
of Defendant claimed that since then, he had been continuously watching, seeing and allowing the alleged construction and business of the shop and hence, he is estopped by his own act and conduct to file rt the suit. However, defendant in written statement stated that in case, plaintiff succeeds in proving his title on the basis of wrong record prepared by the settlement field staff, in that eventuality, suit of the plaintiff is not maintainable as the same is time barred and has lost title as defendant since 1980 is coming in continuous and unobstructed possession with the knowledge of the plaintiff and as such, defendant claimed himself to have become owner by way of adverse possession.
Defendant further averred that plaintiff in year, 1984 asserted his right in presence of the respectable persons of the area but since no steps were taken for the recovery of possession, he is not entitled for the possession of the suit land. In view of the aforesaid background, learned trial court framed seven issues. Learned court on the basis of pleadings as well as evidence adduced on record decreed the suit of ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -4- the plaintiff for possession of the suit land by demolishing the constructed area marked by letters A to G in site plan Ext.PW1A. Being .
aggrieved and dissatisfied with the aforesaid judgment and decree, defendant/appellant filed an appeal before the Court of learned District Judge, Una, who vide judgment and decree dated 4.12.2009 dismissed the appeal preferred on behalf of the present of appellant/defendant, as a result of which, judgment and decree passed by the learned trial Court was upheld. Hence, present regular second appeal, before this Court.
rt
3. This Court vide order dated 6.7.2005 admitted the present Appeal on Substantial questions of law framed at Sr. Nos. 1 and 2, which are reproduced herein below:-
1. Whether the Ld. Courts below have erred in law by not dismissing the suit of the plaintiff as being beyond limitation in view of oral evidence and documents Ex.D-1/A, DW-1/B and DW-4/A?
2. Whether the findings that the presumption of truth attached to Ext.P-1, Missal Haquit for the year 1988-89, stood rebutted is sustainable in the absence of any cogent and convincing evidence to the contrary?
4. Mr. Dilip K. Sharma, Advocate, appearing for the appellants, vehemently argued that the Impugned judgment and decrees passed by the courts below are against law and facts and as such, deserves to be quashed and set-aside. Mr. Sharma, vehemently argued that bare perusal of the impugned judgments and decrees clearly suggests that the Courts below have misconstrued and ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -5- misapplied the provisions of the Code of Civil Procedure, Limitation Act and H.P. Land Revenue Act, as a result of which, great prejudice has .
been caused to the present appellant. It is further contended on behalf of the appellant that learned District Judge failed to consider the material fact that the learned trial Court had failed to frame complete and proper issues arising out of respective pleadings of the of parties. He also stated that learned trial Court also failed to record separate findings on separate issues, which has prejudiced the case of the appellant/defendant.
rt With a view to substantiate aforesaid arguments having been made by him, Mr. Sharma, invited attention of this Court to issue No. 6-A framed by the Court to demonstrate that learned trial Court failed to record any finding on issue No. 6-A on erroneous ground that counsel for the defendant had dropped plea of adverse possession. As per counsel representing the appellant, there was enough/sufficient evidence available on record to prove the plea of adverse possession and as such, finding returned by the learned trial Court qua issue No. 6-A deserves to be quashed and set aside being contrary to the evidence available on record. Mr. Sharma strenuously argued that courts below have fallen in grave error by upholding the finding of learned trial Court on issues No. 4 and 5 regarding estoppel and limitation. To substantiate his arguments, Mr. Sharma invited attention of this Court to the statement of PW3 Granthi Ram, who in his ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -6- examination-in-chief stated that the shop of the appellant-defendant was 12 years' old. Similarly, PW2 admitted that shop of defendant was .
having an electricity connection. Mr. Sharma also invited attention of this Court to the statement of PW4 Sukhdev Singh, Official Witness from the Electricity Board, who deposed that electricity meter in the name of defendant-appellant Goverdhan Singh was installed on 23.5.1984.
of Mr. Sharma, forcefully contended that there was overwhelming evidence adduced on record by the present appellant, which could lead to a conclusion that the plaintiff-respondent failed to avail rt remedy, if any, within the prescribed period of limitation qua the suit for possession. He contended that finding returned by the Courts below qua the issue of limitation and estoppels is erroneous and unsustainable in the eye of law. Mr. Sharma further argued that the learned District Judge has fallen in grave error by upholding finding of learned trial Court on issue No. 1, wherein it came to conclusion that the plaintiff rebutted the presumption of truth attached to document Ext.P1 i.e. Missal Haquit for the year, 1988-89, wherein the defendant was shown to be Kabiz over the suit land. As per document having been placed on record by the plaintiff, no cogent and convincing evidence was brought on record by the plaintiff to rebut the presumption of truth attached to it and as such, finding of the trial Court that the revenue record is not clinching evidence to hold the existence of the shop over ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -7- the suit land prior to 1988-89 is purely conjectural and unsustainable in the eye of law. While concluding his arguments, Mr. Sharma, .
contended that the courts below have committed error in law by decreeing the suit for possession of the plaintiff of the suit land by demolishing the construction raised thereon without there being any expert evidence on record to the effect that the shop of the defendant of was situated on the suit land. Hence, in the absence of any expert evidence, the suit was liable to be dismissed. In the aforesaid background, Mr. Sharma, prayed for setting aside and quashing of the rt judgment passed by the courts below.
5. Mr. Ajay Sharma, Advocate, representing the respondent supported the judgment passed by the Courts below. He forcefully argued that bare perusal of the judgment passed by both the courts below suggests that same are based upon the correct appreciation of evidence available on record and as such, no interference, whatsoever of this Court, is warranted in the facts and circumstances, where it stands duly proved on record that courts below, while accepting the suit filed by the plaintiff, has dealt with each and every aspect of the matter very meticulously. Mr. Ajay Sharma, also contended that this Court while exercising power under Section 100 CPC has very limited power to re-appreciate the evidence led on record by the respective parties, especially when both the courts below ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -8- have returned concurrent findings of facts as well as law. To substantiate his aforesaid arguments, Mr. Ajay Sharma placed reliance .
on the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264.
6. Mr. Ajay Sharma, apart from above, also contended that it stands duly proved on record that defendants carried out construction of of the shop over the suit land after 1983. He was unable to prove on record by leading cogent and convincing evidence that he constructed the shop over the suit land prior to year, 1980 and there is rt no force, whatsoever, in the contention put forth by the counsel for the appellant that suit was beyond period of limitation. With a view to substantiate his aforesaid contention qua the limitation, Mr. Ajay Sharma, made this Court to travel through the evidence led on record by the defendant himself, where DW4 Sukhdev Singh, Senior Assistant Electricity Board, proved on record electricity bills along with its receipt and plan of shop. Defendant also placed on record affidavit Ext.DW1/A along with Application Ext.DW1/B, which shows that during year, 1983, defendant had applied for levy cement. With a view to substantiate his aforesaid argument, Mr. Ajay Sharma, also invited attention of this Court to the oral statement made by the defendant witness to demonstrate that even witnesses cited by the defendant were not able to prove that construction, if any, of the shop was carried ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP -9- out during the year 1980, and as such, claim put forth on behalf of the defendant in written statement that he had carried out construction of .
shop in 1980 was rightly not accepted by the courts below. Mr. Ajay Sharma, also invited attention of this Court to that portion of the statement of the defendant, wherein he claimed that with the passage of time, he has become owner by way of adverse possession.
of Defendant (DW-1) in his statement stated that in the year 1984, he asserted his right in the presence of respectable persons and no steps were taken towards the recovery of possession by the plaintiff, hence, rt he is not entitled for possession of suit land.
7. I have heard the learned counsel for the parties and carefully gone through the record.
8. This Court would be taking up substantial question No.1 as referred above, for consideration at the first instance and solely with a view to explore answer to the same, would be referring to the documents Ext.DW1/A, Ext.DW1/B and Ext.DW4/A. Ext.DW1/A is an affidavit tendered in evidence by the defendant Goverdhan Dass. The contents of affidavit suggest that defendant on 16.2.1983 intended to construct residence cum shop on the suit land and in that regard, he applied for levy cement. In affidavit, he stated that if the levy cement is granted to him, he would not undertake any expansion on the said residential cum shop beyond 120 sq.meters for a period of five years ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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from the day of completion of said house. Ext.DW1/B is application for cement permit, perusal of which suggests that vide application dated .
16.2.1983 defendant applied for cement permit. Ext.DW4/A is the receipt issued by the HP State Electricity Board dated 9.4.1984 suggestive of the fact that Electricity Board had received an amount of Rs. 73/- for installation of electricity meter on 9.4.1984. While exhibiting of aforesaid documents, defendant made an attempt to prove that he started construction of residential cum shop on the suit land in year, 1983. The appellant defendant tendered in evidence affidavit rt Ext.DW1A as referred above, to suggest that that he laid foundation of the shop in 1980 and lintel was laid in the year, 1983. Careful perusal of recital made in the affidavit suggests that defendant applied for levy cement specifically undertaking therein that he would not undertake any expansion of residential cum shop beyond 120 sq.meters for a period 5 years from the date of completion of said house. It appears that by way of tendering aforesaid documents in evidence, defendant made an attempt to prove that shop in the suit land came into existence over the suit land in 1984 but plaintiff did not take any action to get the recovery of possession till filing of present suit dated 5.9.2000, meaning thereby, suit is completely time barred in terms of Article 64 of the Limitation Act, 1963. As per Article 64 of the Limitation Act, suit if any, for possession of immovable property based on previous ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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possession and not on title, could be filed within a period of 12 years from the date of dispossession. It would be profitable to reproduce .
Article 64 of the Limitation Act, 1963, herein below:-
Article 64 of the Limitation Act, 1963 Description of suit Period of Time from which limitation period begins to run
64. For possession Twelve years The date of of immovable dispossession.
property based on of previous possession and not on title, when the plaintiff while in possession of the rt property has been dispossessed.
Careful perusal of Article 64 supra, clearly suggests that suit for possession of immovable property based on previous possession and not on title can be filed within 12 years from the time of dispossession.
9. In the present case, as emerged from the plaint, the plaintiff filed suit under sections 5 and 38 of the Specific Relief Act and under Section 9 CPC for possession of area measuring 0-00-65 hects.
bearing khewat No. 324 min, Khatauni No. 634 Khasra No. 400 as entered in Misal Hakiat situated in Up-Mohal Ghanari Brahminan Changan, Tehsil Amb, District Una, HP, by demolishing the construction as shown yellow in colour marked by letters A to G. The plaintiff in the plaint specifically stated that the land described herein above was previously owned and possessed by his father Partap Singh and after his ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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death, he was succeeded by plaintiff being son and other brothers being sons and LRs of Devinder Singh i.e. predeceased son of Partap .
Singh. Ext.P1 is Misal Hakiat Bandobast for the year, 1988-89, perusal whereof clearly suggests that Partap Singh, predecessor-in-interest of the plaintiff was recorded as owner of the suit land, whereas defendants have been shown in possession of the land. Careful perusal of of aforesaid document Ext.P1 clearly shows that predecessor-in-interest of the plaintiff stood recorded as owner of the suit land. Similarly, perusal of Ext.P3 i.e. for the year 1994-95 suggests that after the death of rt Partap Singh, who was recorded owner of the land in Ext.P1 Missal Hakiat for 1988-89, plaintiff Rajinder Singh along with other LRs of Partap Singh entered into the shoes of late Partap Singh. Careful perusal of Exts.P1 and P3 placed on record duly exhibited on record clearly suggest that the plaintiff is owner of the suit land after death of his father. In view of above, this Court sees no force in the contention put forth on behalf of the counsel representing the appellant-defendant that no suit for possession of immovable property could be entertained by the courts below after 12 years from the date of dispossession as provided under Article 64 of Limitation Act, 1963.
10. At the cost of repetition, it may be stated that Section 64 provides limitation of 12 years for filing suit for possession of immovable property based on previous possession and not on title. But in the instant ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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case, the plaintiff by way of placing on record Exts.P1 and P3 has successfully proved on record that they are owner of the suit land, .
which is sought to be recovered by filing of suit for recovery of possession. Since, the plaintiff filed suit for possession of immovable property on the basis of title, which stands duly proved in terms of Exts.1 and 3, plea of limitation as raised by appellant-defendant is not of otherwise tenable and same has been rightly rejected by the courts below. Defendant by way of placing reliance by the Ext.DW1,A, DW1/B and DW4/A, as has been referred above, made an attempt to rt demonstrate that residential cum shop was constructed by him in the Year, 1983-84 on the suit land in the presence of plaintiff but no steps whatsoever, were taken by him to recover the possession by way of filing the suit. Though, in written statement, defendant specifically stated that he constructed the shop over the suit land in 1980 but the evidence tendered supra is suggestive of the fact that he raised construction of residential cum shop on the suit land in the year, 1983-
84. Bare perusal of the exhibits clearly suggests that stand taken by him that he raised constructed shop in the year, 1983, is incorrect and contrary to the documentary evidence adduced on record and as such, was not rightly relied upon by the courts below.
11. Apart from above, defendant-appellant with a view to stand taken by him in the written statement, examined himself as DW1 ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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and stated that suit land is comprised in khasra No. 3219, which was converted into khasra No. 400 during consolidation. He stated that on .
eastern side of the same is the land of Partap Singh comprised in khasra No. 3217 and towards west, is khalwara of Sant Ram. He also stated that on south is the road and towards north is his land, which comprises of khasra No. 3216. DW1 in his evidence, tendered by way of affidavit of stated that he laid foundation of the shop in the year, 1980 and lintel was laid in 1983. He also stated that in the year, 1984, the plaintiff made claim upon the shop but he did not take any action till the filing rt of the present suit. The defendant also stated that he has become owner by way of adverse possession. At this stage, if the aforesaid statement of defendant is examined vis-à-vis stand taken by him in written statement, it clearly emerges that defendant was unable to state specific date, month time when plaintiff made claim upon the shop by way of adverse possession. Similarly, defendant in written statement stated that he raised construction over the shop in the year, 1980 in presence of plaintiff and since then, plaintiff never objected to such construction of the defendant and as such, he is in continuous and unobstructed possession with the knowledge of the plaintiff by way of adverse possession. On the other hand, defendant by way of placing on record document Ext.DW1/A made attempt to prove that he started the construction in the year, 1983-84, bare perusal of which ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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clearly suggests that defendant appellant had applied for levy of cement in the year, 1983-84 and as such, it is not understood which of .
version put forth on behalf of the defendant is correct because in written statement, he claimed that he started construction of shop over the suit land in 1980, whereas in the documents referred supra, which were relied upon by him during trial, he attempted to prove that of construction was started by him in 1984. Similarly, it emerged from the record that though, defendant appellant in written statement raised plea of acquiring title by way of adverse possession but plea of adverse rt possession contained in written statement was dropped by the counsel representing the appellant defendant Moreover, DW1 save and except making statement that he become owner by way of adverse possession has not been able to prove on record that in what manner he acquired the title by way of adverse possession. Though defendant stated that he is coming in continuous and unobstructed possession with the knowledge of the plaintiff but no cogent and convincing evidence was ever led on record by him to prove aforesaid factum of acquiring title by way of adverse possession. Since plea of adverse possession was dropped on behalf of the defendant, courts below rightly came to conclusion that defendant was not able to show his entitlement to the suit land by denying the title of the plaintiff.
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12. Similarly, DW2 Manohar Lal on affidavit stated that he had done work as labourer in the year, 1983 on the shop while laying lintel of .
the shop in question. Though in his statement, he stated that when the lintel of the shop was being laid in 1983, foundation was already laid.
Close scrutiny of aforesaid witness, DW2 Manohar Lal nowhere suggests that the shop was constructed in the year, 1980, rather, this witness of categorically stated that he worked as labourer in 1983 while laying lintel of the said shop, meaning thereby, lintel, if any, was laid in the year, 1983. Defendant also examined Sukhdev Singh, Senior Assistant rt Electricity Board along with Ranvir Singh Clerk. Aforesaid witness while proving document Ext.DW4/A categorically admitted in his cross-
examination that there is no mention of khasra number over which, said shop is existing. Defendant by placing record Ext.DW4/A made an attempt to demonstrate that shop was already in existence in year, 1983-84. But admittedly, defendant nowhere led positive evidence on record to suggest that shop in which, electricity meter Ext.DW4/A was installed, existed over khasra No. 400 (old 3127). DW3 Sanjeev Kumar exhibited site plan and Ranvir Singh verified the signature Ext. DW1. But careful perusal of the aforesaid documents, as has been discussed in detail above, nowhere suggests that construction, if any, of shop was carried out in the year 1980, rather, aforesaid documents clearly suggests that construction on shop if any, started in the year, 1983-84.
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Plaintiff with a view to prove that cause of action accrued to him 10 years back from filing suit, examined PW1 Tarlok Chand, who .
categorically proved the site plan Ext.PW1/A. Plaintiff himself examined as PW2 and cross-examination of PW2 suggests that defendant himself put suggestion to the plaintiff that shop was raised about 10 years back, which suggestion was admitted by the plaintiff. Plaintiff in his cross of examination specifically admitted that shop in question was raised about 10 years ago, whereas plaintiff by placing document Ext.PW1 was successful in proving that he being owner of the suit land is entitled rt for recovery of the possession of the suit land from defendant, who is a trespasser. Though, defendant in written statement as well as his statement stated that during settlement in village, plaintiff's father with active connivance of revenue staff got wrong revenue record prepared of adjoining land and procured ownership but this Court was unable to find out any evidence, be it ocular or documentary, led on record by the defendant corroborative of aforesaid stand taken by the defendant in the written statement. Similarly, defendant claimed that he constructed shop over the suit land in 1980 in the presence of plaintiff, who never objected about the same and claimed title on the basis of adverse possession but as has been discussed above, no evidence, whatsoever, was led on record to prove that the plaintiff acquired ownership by way of adverse possession, rather, careful ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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perusal of the record suggests that at later point of time, defendant himself dropped the plea of adverse possession.
.
13. Now, adverting to substantial question No. 2 i.e. " Whether the findings that the presumption of truth attached to Ext.P-1, Missal Haquit for the year 1988-89, stood rebutted is sustainable in the absence of any cogent and convincing evidence to the contrary?" Careful perusal of the aforesaid question of law clearly suggests that same has been framed of on the basis of finding returned by the trial Court, wherein learned trial Court while concluding that evidence led by defendant about rt construction of shop over the suit land since 1980 does not appear to be consistent cogent and convincing, observed that "presumption attached to document Ext.P-1 stands rebutted and it is held that suit shop was constructed by the defendant about ten years ago." It appears that aforesaid expression i.e. "presumption attached to document Ext.P-1 stands rebutted" is a typographical mistake because if Para-14 of the judgment passed by the learned trial Court is read in its entirety, intention of trial Court can be gathered whereby it intended to state that "presumption of truth attached to document Ext.P1 stands un-rebutted." Probably trial Court in view of the specific finding returned by it 'that evidence led by the defendant about construction of shop over the suit land since 1980 as averred in the written statement, does not appear to be consistent, cogent and convincing,' intended to ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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conclude that "presumption of truth attached to document Ext.P-1 stands unrebutted". Had the learned court below come to conclusion .
that presumption attached to document stands rebutted, suit filed by the plaintiff could not be decreed in any circumstance. Because, entire case for recovery of possession filed under Sections 5 and 38 of Specific Relief Act filed by the plaintiff, was based upon Ext.P1, as of discussed above, plaintiff placed reliance on Ext.P-1 to suggest that predecessor-in-interest of the present plaintiff was entered as owner of the suit land and after his death, he became owner of the suit land. At rt this stage, it is important to point out that defendants in written statement denied the ownership of plaintiff by stating that plaintiff's father with active connivance of revenue officials got the Karukans changed and got him recorded as owner qua the suit land. In the aforesaid background, plaintiff had only relied upon document Ext.P1 to demonstrate that he is the owner of the suit land. Otherwise also, close-scrutiny of the judgment passed by the learned trial court nowhere suggests that it had intended to return the finding that presumption of truth attached to document Ex.P1 stands rebutted and as such, this Court has no hesitation to conclude that there has been some typographical mistake regarding aforesaid finding qua the presumption of truth attached to document Ext.P1 and as such, questions No.1 and 2 are answered accordingly.
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14. This Court is fully satisfied that both the courts below have very meticulously dealt with each and every aspect of the matter and .
there is no scope of interference, whatsoever, in the present matter.
Since both the courts below have returned concurrent findings, which otherwise appear to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In of this regard, it would be apt to reproduce the relevant contents of judgment passed by the Hon'ble Apex Court in Laxmidevamma's case supra, which reads as follows:-
rt "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property.
In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
15. Consequently, in view of the aforesaid discussion, this court sees no reason to interfere with the well reasoned judgments passed by the courts below as the same are based upon the correct appreciation ::: Downloaded on - 15/04/2017 21:04:12 :::HCHP
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of evidence available on record. Hence, the instant regular second appeal is dismissed being devoid of any merit.
.
August 23, 2016 (Sandeep Sharma),
manjit Judge.
of
rt
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