PAWAN TOOR Vs. RANBIR KAUSHAL

JUDGEMENT

(1.) SUIT filed by plaintiff was decreed by trial Court vide judgment and decree dated 14.02.2007. Appeal preferred against the said decree failed and was, accordingly, dismissed by learned first Appellate Court vide judgment and decree dated 03.09.2010. That is how, defendant No. 1 is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) IN short, the case set out by plaintiff was that the suit property as detailed in the plaint belonged to Vandana Kohli wife of Rajnish Kohli, who purchased this plot vide registered sale deed dated 22.09.1989. Vandana Kohli through her attorney sold the said plot to plaintiff vide registered sale deed dated 10.10.1997 and he was put in vacant physical possession thereof. Mutation No. 7829 was, accordingly, sanctioned in favour of plaintiff. Pursuant to having purchased the said plot, plaintiff raised a boundary wall around the said plot upto 5 feet and fixed a gate. It was stated that defendant No. 1, claimed herself to be the owner of the suit property and threatened to take forcible possession thereof. On inquiries made from the revenue officials, it transpired that the plot purchased by plaintiff formed part of khasra No. 122/32/1. On the contrary, defendant owned a plot, which formed part of khasra No. 122/22/2/2, at a distance of few plots from the disputed plot. Since there was a threat of dispossession, thus, the suit.

(3.) ON an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that plaintiff proved a sale deed (Ex. P5), executed by one Surinder Singh in favour of Vandana Kohli. And also sale deed (Ex. P1) whereby plaintiff had purchased the suit property from Vandana Kohli. To substantiate his possession, plaintiff had examined PW 3 Swaraj Singh, Photographer, who proved the photographs from PW 3/1 to Ex. PW 3/9. Still further, plaintiff also examined Ramesh Choudhary, Advocate (PW 6) and B.S. Rampal (PW 10). The said two witnesses happened to be the residents of the same locality where the site in dispute is situated. Even in the sale deed (Ex. P1), it was duly recited that the possession of the suit property was delivered to plaintiff. Not just that, defendant No. 1 herself never chose to appear in the witness box. Principal issue, as to whether the suit property formed part of khasra No. 122/32/1 min or 122/22/2 min, pursuant to the orders passed by the Court, Local Commissioner Kewal Krishan, Kanungo was appointed to ascertain this fact. Demarcation report (Ex. P12/6) revealed that the suit property indeed formed part of khasra No. 122/32/1 min. Objections preferred by defendant against the said report were disallowed by the trial Court by a separate order. Revision preferred against the said order to this Court was dismissed. Local Commissioner was subjected to cross -examination and he proved that demarcation was made from Sehada of the village which was a fixed point. Consequently, contention of the counsel for the defendant that, no such point was marked by Local Commissioner was found to be untenable. Further, no notice was afforded by Local Commissioner to the defendant before carrying out demarcation, was also repelled by the Court as the records revealed that notice (Ex. PW 12/3) was issued to the counsel for defendant. However, he made an endorsement thereon that the same be sent to the party itself. Argument advanced on behalf of defendant that, boundaries mentioned by the plaintiff in the pleadings did not tally with the sale deed of Vandana Kohli and the boundaries mentioned by plaintiff in the site plan (Ex. P7) were different from the one mentioned in the plaint, was also rejected. As the boundaries of the property in dispute were not the principal issue involved for determination. The short issue to be determined was as to which khasra number the plot in dispute formed part of i.e. khasra No. 122/32/1 or khasra No. 122/22/2/2. That being so, learned trial Court was of the view that the report of Local Commissioner conclusively proved that the property in dispute formed part of khasra No. 122/32/1 min. as pleaded by plaintiff. Accordingly, suit was decreed.