GOKAL CHAND Vs. INDER SINGH

JUDGEMENT

(1.) The above appeal has been filed by the Plaintiff in Civil Suit No. 119 of 1986 on the file of the learned Senior Sub-Judge, Kullu, who lost before both the Courts below against the judgment and decree passed by the learned Additional District Judge, Kullu dated 3.5.1993 in Civil Appeal No. 29/89 whereunder the learned First Appellate Judge while affirming the judgments of the learned trial Judge dismissed the appeal thereby confirming the dismissal of the suit filed for permanent prohibitory injunction restraining the Defendants from interfering with the alleged peaceful enjoyment, ownership and possession of the Plaintiff in the land shown on the back of mutation No. 1182 of Phati Ratocha sanctioned and attested on 5.6.1984 referred to hereinafter as the suit land and for recovery of Rs. 29,750/- by way of damages with an alternative relief for recovery of possession. According to the Plaintiff the suit land was allotted to him in Nautor by Rai Mohinder Singh and thereafter mutation No. 1182 dated 5.6.1984 was attested in his name and as such he had been in ownership and possession of the land since 28.2.1969 when it was said to have been allotted to him in Nautor. The Plaintiff also claimed to be one of the Bartandar of Phati Ratocha prior to 1911-12 and asserted his claim as such with a further claim that the suit land was allotted to him and as a consequence thereof mutation was attested in his favour by the District Revenue Officer, Kullu on 5.6.1984. It is the grievance of the Plaintiff that the Defendants actuated with malice and in a clandestine manner managed to secure the permission of the Collector, Sub-Division, Kullu dated 29.6.1984 for the review of the above mutation but the said mutation has neither been reviewed nor cancelled till the date of the filing of the suit at any rate. It was also alleged by the Plaintiff that on the night intervening 27/28.3.1986, the Defendants committed criminal trespass into the suit land and cut, removed and damage 250 apple and pear trees of the age of 1 to 7 years and again on 29.3.1986 cut, damaged and removed 30 more apple and pear trees causing thereby a monetary loss to the tune of Rs. 29,550/- and it is with such claim and grievance, the Plaintiff has approached the trial Court for the reliefs noticed supra. The Defendants filed a written statement contesting the claim of the Plaintiff that the suit itself was not maintainable for the reason that the Plaintiff was neither in possession of the suit land nor he had any interest in it and that even Rai Mohinder Singh had no right or title or interest and authority to grant Nautor in the area where the suit land was situated because according to the Defendants, though the Sanad granted to him had been even revoked on 23.1.1960, whereas the rights as Jagirdar to allot Nautor had been extinguished even under (the Punjab) Resumption of Jagirs Act, 1957. A plea of bar of limitation as also the defect of non-joinder of all necessary parties has also been raised. The further plea of the Defendants appears to have been that the suit land is Banjar land and nothing has been cultivated upon it and, therefore, there was no question of cutting, removing or damaging the trees from the suit land and consequently the Plaintiff is not entitled to recover any amount towards the damages for any alleged wrongful loss as claimed. The Defendants in their turn asserted and claimed right, as right holders, in the area and that they have a right on the suit land as such right holders.

(2.) On the above claims and counter claims so made before the learned trial Judge, the suit came to be tried after framing issues. Among other things, an issue has been framed as to whether the Plaintiff is owner in possession of the suit land in terms of the claim made and the pleadings filed on behalf of the Plaintiff, placing the burden of proof on the Plaintiff in this regard, the other issue being as to whether the Plaintiff is entitled for recovery of possession or prohibitory injunction, as prayed for. An issue has also been raised in the teeth of the claim about the grant under the Nautor by Rai Mohinder Singh by the Plaintiff as to whether Rai Mohinder Singh had any right to make a grant in Nautor to the Plaintiff and whether the alleged Patta granted on 28.2.1989 was fraudulently given on back date, viz., ante dating it as alleged, as contended by the Defendants and the onus of proof in this regard has been placed on the defendnats. The learned trial Judge after considering the oral and documentary evidence on record, recorded a categorical factual finding that the possession of the suit land never remained with the Plaintiff and that he has tried to prove his case by procuring false witnesses. In coming to such a conclusion, the learned trial Judge appears to have placed reliance upon the admission said to have been made even by Rai Mohinder Singh himself that though he has issued Patta he had not delivered possession of the property to the Plaintiff on the spot. In view of the above and in teeth of certain inherent infirmities pointed out in the matter of very want or lack of power on the said Rai Mohinder Singh himself to grant the land in Nautor as also the non-compliance with the relevant procedure, the learned trial Judge also was of the view that the Plaintiff cannot be considered as owner of the suit land and that he never exercised domain over the suit land. As a consequence thereof the Plaintiff's claim for damages also was rejected and the suit came to be dismissed.

(3.) Aggrieved, the Plaintiff pursued the matter on appeal before the District Court, Kullu in Civil Appeal No. 29/89 and the learned Additional District Judge, Kullu by his judgment and decree dated 3.5.1993, after undertaking an elaborate consideration of the matter concurred with the findings recorded by the learned Trial Judge by giving his own reasons further in support of the factual findings recorded by the learned trial Judge. It appears that the Plaintiff has invoked the powers of the First Appellate Court under Order 41, Rule 27 of the Code of Civil Procedure, for letting in an additional evidence by means of producing a copy of the judgment of this Court dated 13.5.1991 in C.W.P. No. 4/91, which on a consideration made by the learned First Appellate Judge, was considered to be not relevant to the point in issue. Consequently, the appeal also came to be dismissed necessitating the filing of the above second appeal before this Court.