MUNSHI Vs. MANGOO

JUDGEMENT

(1.) MUNSHI and Mango are two brothers admittedly co -sharers in a khewat. A dispute arose regarding their possession over Khasra No. 1433 measuring 1 Kanal and 14 marlas situate in the village of Nonath Tehsil Hiranagar. Alleging that the plaintiff was in possession of whole of this land and the defendant dispossessed him from a piece of 10 marlas out of this khasra No ; the plaintiff filed a suit in the court of Munsiff Hiranagar, under section 9 of the Specific Relief Act (hereinafter called "the Act"). The suit was filed on 26 -3 -1969. There was no prayer regarding a decree for possession in respect of the remaining 1 kanal and 4 marlas of land. Subsequently, however, on 8 -4 -1969 when the suit was pending, the plaintiff made an application before the Tehsildar, Hiranagar, stating therein that he was in possession of 1 kanals and 4 marlas of land from khasra No: 1433 min but girdawari entries did not show him in possession. He, therefore, prayed that the entries in the girdawari may be corrected. The Tehsildar vide his order dated 19 -4 -1969 transferred this application to the Naib Tehsildar for enquiry. Before the Naib Tehsildar a number of witnesses appeared both for the plaintiff and the defendant. The two witnesses out of those produced by Mango also supported the case of the defendant regarding the defendant being in possession of the entire land. The Naib Tehsildar therefore found the defendant in possession of the entire land measuring 1 kanal 4 marlas and refused the prayer of the plaintiff for correcting the entries in the girdawari. The plaintiff left the proceedings there and did not go up in appeal or revision against the finding of the Naib Tehsildar. He, however, made an application before the Munsiff seeking an amendment in the plaint. This application for amendment was made by him on 12 -5 -1969 in which he stated that by an accidental error only 10 marlas instead of 1 kanal and 14 marlas were included in the suit, otherwise, as a matter of fact, the whole of the land falling under khasra No: 1433 Min was taken possession of by the defendant unauthorisedly five days before the institution of the suit. After the amended plaint was filed the parties went to trail. Various issues which were framed by the trial court were ultimately decided by the Munsiff vide his judgment impugned in this revision application.

(2.) IT is worthwhile to note here that a copy of the report made by the Naib Tehsildar holding the defendant in possession of the land was also produced before the Munsiff, but the Munsiff has not made any mention of that report in the judgment.

(3.) I would not have ordinarily interfered with the decree passed by the court below being fully conscious of the fact that there is very little scope to interfere with a finding of fact recorded by the trial court on an" appreciation of the evidence. But the whole approach adopted by the learned Munsiff in dealing with this case appears to me to fee erroneous. The error appears to be many fold. First that it was neither the case of the plaintiff nor of the defendant that the land in question was in their joint possession. Either party claimed to be in exclusive possession of the land. The learned Munsiff therefore was hardly in a position to come to a finding that the land was jointly in possession both of the plaintiff and the defendant. The plaintiff had to fail or succeed on the case put -forth by him in the plaint. In the course of the trial of a civil suit in which the issue is whether the plaintiff was in exclusive possession of the land in dispute and whether he was dispossessed therefrom within six months prior to the date of the institution of the suit the finding could either be that he was in possession within the aforesaid period and was dispossessed forcibly or that he was in possession. This has not been done in this case.