SULTAN Vs. KASTURI

JUDGEMENT

(1.) This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging judgment and decree dated 1.4.2005 passed by the learned Additional District Judge, Narnaul while accepting the appeal of the plaintiff-respondents. It is appropriate to mention that the Civil Judge had earlier dismissed the suit of the plaintiffs-respondents vide his judgment and decree dated 17.11.1998.

(2.) Brief facts of the case are that the plaintiffs respondents instituted civil suit No. 940/ 1990 on 2.6.1990/26.11.1990 for permanent injunction against the defendants-appellants claiming that they were owners in possession of the suit land the defendant appellants be restrained from interfering with their peaceful possession over Ahata No. 176,ghar No. 397 comprised in khasra Abadi 1947 BK. The suit was orginally filed by one Chandu Ram alongwith Mam Chand who are now being represented by the present appellants being their legal heirs. The Trial Court dismissed the suit holding that the plaintiffs-respondents had failed to discharge the burden of proof showing that they were owners in possession of the suit land described in red colour in the site plan attached with the plaint. The site plan Ex. P 2 in respect of Ahata No. 176 ghar No. 397 and 398 are shown to be in the ownership of Mangtu, the predecessor -in-interest of the plaintiffs-respondents. However, the Trial Court also found that the defendants-appellants were not able to establish that the suit property was part of ghar No. 232. Two reports of the Local Commissioner namely Ex. PW1/D and the other report dated 6.9.1998 were discarded by the Trial Court holding that the same were not prepared in accordance with the instructions of the Financial Commissioner as adopted by this Court. However, it was found that predecessor-in-interest of the plaintiffs-respondents Mangtu was owner of ghar No. 397 and 398 situated in Ahata No. 176, Kharsa Abadi 1947 BK.

(3.) However, the question which was required to prove was whether the portion shown in red colour in the site plan attached with the plaint was part of that property namely ahata NO. 176 ghar No. 397. The view of the Trial Court is discernible from the perusal of findings recorded on the core issue as to whether plaintiff-respondents were owners in Ahata No. 176 ghar No. 397 as per Khasra abdi 1947 BK. The view of the Trial Court in this reads as under: