SMT. BANTI DEVI & ORS. Vs. MUNSHI RAM

JUDGEMENT

(1.) In this Civil 2nd Appeal, the appellants have assailed the validity of the judgment and decree dated 31. 12. 2012 passed by the learned Principal District Judge Kishtwar whereby the appeal filed by the appellants/defendants against the judgment and decree dated 01. 10. 2003 passed by the learned Sub-Judge (CJM) Kishtwar decreeing the suit of the respondent/plaintiff against the appellants/defendants has been upheld and operative part thereof has been modified and further a fresh second decree has been passed against the appellants with costs.

(2.) The facts leading to filing of this appeal briefly stated are that the father of appellant No. 1 and the respondent herein namely Late Sh. Sham Lal Thakur, since deceased, was originally a resident of Village JoshaanaSaroor Teshil & District Kishtwar, where he had a dwelling house and ancestral landed properties and he had four sons namely Mohan Lal, Munshi Ram, Prehlad Bhagat and Ram Krishan. Besides the ancestral immovable/movable properties including the residential house building situated at Village Joshaana-Saroor belonging to the late father of the appellant No. 1 and the respondent herein namely Sh. Sham Lal Thakur, the deceased father had also self acquired various lands at Kishtwar including a piece of land comprising of Khasra No. 522 situated at Village HidyalKishtwar wherein he had also constructed a residential house building with vacant land. It is further contended that in the year 1968, the deceased father of the appellant and the grandfather of appellant Nos. 2 to 4 (sons of the appellant herein) during his life time orally partitioned his entire landed properties situated at Kishtwar as well as at Joshaana Saroor and adjoining places amongst his all the four sons in the ration of 1/4th share each, who are since then in possession, use and occupation of their respective shares. However, insofar as the two residential houses, one situated at HidyalKishtwar and the other one situated at village Joshaana-Saroor (Kishtwar) were concerned, the same fell into the exclusive shares of appellant No. 1 and the respondent herein. Insofar as other two sons, namely Prahlad Bhagat and Ram Krishan, were concerned, they were given one plot each in the land comprising of Khasra no. 522 at village Hidyal-Kishtwar i. e. , adjacent to the aforesaid residential house of the appellant, who subsequent to the said oral partition effected in the year 1968, themselves constructed their own houses over the said plots and are residing therein since then. It is reiterated here that all the four brothers got equal shares of 1/4th each in all the lands situated at both places i. e village Joshaana-Saroor as well as at Hidyal-Kishtwar excepting the two residential houses, as stated hereinabove and they are duly reflected as owners of 1/4th shares in the landed properties in the revenue records. It is further contended that right from the year 1968 all the four brothers including the appellant No. 1 as also the respondent including the other two brothers are in the use and enjoyment of their respective 1/4th shares in the land situated at Kishtwar as also at Joshaana Saroor, whereas the appellant is in exclusive possession of the residential house at Hidyal-Kishtwar as owner thereof and the respondent is in possession of the residential house at village Joshaana-Saroor as owner thereof. It is further contended that in the year 1989 the State Government (in the Fisheries Department) acquired 02 kanals and 03marlas of land out of khasra No. 96 measuring 04 kanals and 18 marlas, situated at Kishtwar, which land had fallen in the share of the appellant No. 1 and who was in occupation and cultivating possession thereof. A compensation of Rs. 40,000/- was granted therefor which became the subject matter of dispute between the respondent and other two brothers, namely, Prahlad Bhagat and Ram Krishan on one side and the appellant on the other side which lasted up to this Court. In this backdrop, the respondent herein started nourishing ill-will against the appellant and with the active connivance of the other two brothers and he came to Hidyal-Kishtwar in the month of September, 1992 and by committing the criminal trespass he forcibly occupied one room and one bath room of the appellant's house at HidyalKishtwar. Appellant filed a criminal complaint against the respondent in the Court of learned Judicial Magistrate at Kishtwar against the respondent titled Mohan Lal vs Munshi Ram & ors for offences u/Ss 447, 427,323 RPC. In order to counter blast the case of the appellant, the respondent herein on 21. 09. 1994 filed a civil suit titled Munshi Ram vs Mohan Lal and others against the appellants herein which was transferred to the Court of learned Sub-Judge Kishtwar on 01. 10. 1994 for grant of decree for permanent prohibitory injunction thereby restraining the defendants from demolishing the room No. 6 and further restraining them from interfering into his purported possession over room nos. 2,3 & 6 and courtyard/compound (sehan) and also from raising any construction thereon. On motion of the respondent (plaintiff) the trial Court appointed Sh. R. K. Goswami Advocate as a Commissioner on 23. 09. 1994 for conducting the spot inspection and submitting the status report. The Commissioner so appointed while exceeding his brief proceeded to the spot on 24. 09. 1994 and also record the evidence of the witnesses without administering any oath and submitted his report on 05. 1 1994 along with the site plan showing therein that the respondent/plaintiff was in possession of one room kitchen; one room; one cattle room and also showed the alleged room in dispute as Pooja Room. Strangely, the commissioner in his aforesaid report also disclosed that as per the oral statements of the witnesses "that partition has taken place and Munshi Ram (respondent/plaintiff) is in peaceful possession/occupation (should read as "possession") of his share. The dispute if at all is there it is upon the Pooja Ram actually falls in the share of Munshi Ram and Mohan Lal forcibly occupied besides. " It is further stated that Munshi Ram in his statement dated 23. 09. 1994 never deposed before the Commissioner that he had been dispossessed. The dispute was with regard to the said house only as the respondent (defendant No. 1) claims that the same has as a whole fallen into his share only whereas this house was partitioned in the presence of the witnesses and by virtue of the partition deed portion of house comprising of one cattle room and three rooms had fallen in his share. On the contrary the consistent stand of the applicant No. 1 in his statement before the Commissioner, his two written statements filed in the suit; his statement recorded as his own witness, memorandum of appeal filed before the 1st appellate Authority and even the present Memo of Civil Second Appeal, has been that all the landed properties both at Joshaana-Saroor and Kishtwar as well as the two residential house were orally partitioned by the deceased father namely Sh. Sham Lal Thakur way back in the year 1968 whereby the lands were divided into 1/4th share each whereas the house at Hidyal-Kishtwar had fallen into the share of the appellant No. 1 exclusively whereas the house at Joshaana Kishtwar had fallen into the share of respondent Munshi Ram exclusively whereas two separate plots in land at Kishtwar falling under khasra No. 522 were given to the remaining two brothers for constructing their residential houses. The respondent/plaintiff based his suit on the plea raised in para 1 of the plaint that as per the site plan enclosed with the plaint he is the owner in exclusive possession of room nos. 2,3,6 and the compound of the house being part of the house building of the appellant No. 1 who is his elder brother, situated at Hidyal Kishtwar and the defendants had started demolishing and raising construction over room no. 6. Appellants (defendants) filed their first written statement on 10. 10. 1995 thereby resisting the suit of the respondent and reiterating the stand that the properties had been partitioned by their late father in the year 1968 and the house at Hidyal-Kishtwar had fallen into the share of appellant no. 1 exclusively, which is based on truth and the fact. However, before the issues could be framed the respondent/plaintiff filed an application for seeking to amend the said suit on the basis of the false report and the site plan he had managed to obtain and get filed through the Commissioner to the effect that the appellant no. 1 had dispossessed him from room no. 6 and forcibly taken over the possession, which he has admitted in his statement. The application for amendment of the plaint was allowed vide order dated 24. 07. 1997. The trial Court entertained the amended plaint and written statement being the second one was filed by the appellants/defendants 19. 11. 1997 reiterating the same plea of the actual partition having been effected orally by their late father in the year 1968 besides objecting to the legality and acceptance of the report of the Commissioner as also resisting the maintainability of the suit of the plaintiff on a variety of grounds. However, it is submitted that the objection raised with regard to the report of the Commissioner was never addressed to decide by both the courts below rather the same has been acted upon and relied upon as a piece of evidence notwithstanding the settle position of law that the Commissioner cannot be appointed for creating evidence for either of the parties.

(3.) The learned Sub-Judge Kishtwar proceeded to frame as many as seven issues in the suit vide order dated 17. 06. 1998 by completely ignoring the pleadings especially the written statement of the appellants/defendants. These issues read as under: