DHARAMBIR Vs. SURAJ BHAN

JUDGEMENT

(1.) THIS is plaintiff's second appeal filed under Section 100 of the Civil Procedure Code, 1908 (for brevity, 'the Code') challenging the concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant has failed to show as to how the land transferred by defendant-respondent No. 5 Smt. Chandro daughter of Ramji Lal is more than her share in the joint khewat. It has further been held that defendant-respondent No. 5 could have sold her own share and not more than that and the same can be taken care of during partition. The view of the learned Addl. District Judge, Jhajjar, on this issue read as under :-

(2.) THE learned Additional, District Judge has also found that the plaintiff- appellant is not in exclusive possession over the suit land at the time of its sale in favour of defendant-respondents No. 1 to 4. In this regard, the findings of the Additional District Judge read as under :-

(3.) HAVING heard the learned counsel, I do not find any legal infirmity in the findings of fact recorded by both the Courts below. The question of possession is a question of fact which cannot be interfered in a second appeal filed under Section 100 of the Code. It would not give rise to any question of law unless it is shown that the findings recorded by the courts below are based on no evidence or are perverse to the extent that no reasonable person on the available evidence would reach the conclusion recorded by the Courts below. This view has been expressed by the Supreme Court in M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC 244, Ramanuja Naidu v. V. Kanniah Naidu, 1996(2) RRR 554 (SC) : (1996) 3 SCC 392, Yadarao Dajiba Sharawane v. Nanilal Harakchnds Shah, 2003(1) RCR(Civil) 509 (SC) : (2002) 6 SCC 404 and Mohan Lal v. Nihal Singh, 2002(1) RCR(Civil) 132 (SC) : (2001) 8 SCC 584. The principle enunciated by the Supreme Court in the aforementioned judgments when applied to the facts of the present case, it becomes evident that the findings recorded by the courts below are based on jamabandi for the year 1989-90 Ex. PY which reveals that defendant-respondent No. 5 Chandro had got 11/180 share in the total land measuring 68 Bighas 15 Biswas. She sold merely 1 Bigha and 17 Biswas land comprised in Khasra No. 2369 their joint khewat. By simple arithmetic, the sold land would come to less than the share of Chandro defendant-respondent No. 5. Apart from the jamabandi and the sale-deed there are oral statements which would constitute a valid basis for the Courts below to conclude that defendant-respondent No. 5 did not sell land more than her share. Both the courts below have also found that even if it is presumed that she has sold more than her share which obviously she cannot, then during the partition proceedings the same would be creased out and only she would be deemed to have sold only to the extent of her share. On the question of exclusive possession, both the Courts below have found that the plaintiff-appellant has failed to show that he was in exclusive possession of Khasra No. 2369. In the absence of any evidence produced by the plaintiff- appellant, the courts below have concluded that Khasra No. 2369 is a joint holding and all the co-sharers are in joint possession. In view of the above mentioned findings, the suit filed by the plaintiff-appellant has been rightly dismissed. Therefore, I do not find any valid ground to interfere in the aforementioned findings of facts as it would not give rise to any substantive question of law. The appeal is thus without merit and is liable to be dismissed. For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.