KHUSHI RAM Vs. HANS RAJ

JUDGEMENT

(1.) This second appeal is by the unsuccessful plaintiffs. Their suit stands dismissed by the concurrent judgments and decrees of the Courts below. Their claim was for declaration to the effect that the land measuring 30 Kanals and 11 Marlas comprising of Khasra No. 518 entered in the Jamabandi for the year 1963-64 situated in their village Tirhari Teeka Basa, Tehsil Pathankot, though owned jointly as co-sharers with the defendants, was yet in exclusive possession of the plaintiffs. They claimed a perpetual injunction restraining the defendants from interfering in the possession of the plaintiffs till regular partition took place between the co-sharers.

(2.) The basis of the claim was the plaintiffs' assertion that there existed an orchard in a part of the land in dispute, which had been planted by their ancestors. During consolidation, their exclusively possessed land was taken as jointly possessed so as to benefit the defendants. They sought declaration to maintain their exclusive possession over the suit land till a regular partition. They claimed that some revenue entries to their detriment had been got incorporated in the record showing them in joint possession with the defendants contrary to the real situation. The defendants-respondents did not dispute the existence of the orchard. They, however, denied that the plaintiffs or their ancestors had planted an orchard; rather they asserted that the suit land had throughout been in joint possession of the parties. The contentious issue between the parties was as to whether the plaintiffs were in exclusive possession of the suit land. The trial Court found the issue against the plaintiffs and so did the lower Appellate Court in appeal preferred by the plaintiffs. Now they are in second appeal to this Court.

(3.) Apparently, the question involved is one of fact and incapable of being interfered with in second appeal. The learned counsel for the respondents has invited my attention to the rule laid down by their Lordships of the Supreme Court in Deity Pattabhiramaswamy V. S. Hanymayya and Others, 1959 AIR(SC) 57 Madamaachi Ramappa and Another V. Muthaluru Boijappa, 1963 AIR(SC) 1633 Baithal Dass Khanna and Others V. Hafiz Abdul Hai, 1969 S.C. Notes 481, Afsar Shaikh and Another V. Soleman Bibi and Others, 1976 AIR(SC) 163 as well as to a Division Bench decision of this Court in Sadhu V. Mst. Kishni, 1979 RajdhaniLR 482 to forestall any attempt to disturb that finding as that of a fact. In the aforesaid precedents, it has undoubtedly been held that there is no jurisdiction to interfere on the ground of erroneous finding of a fact, however, gross or inexecusable the error may seen to be. Equally it has been held that a finding of the Appellate Court when based upon some documentary evidence would make it none the less a finding of fact. On appreciation of the relevant evidence even, interference in second appeal is not permissible. The only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely to an error on a question of fact.