Jag Mahinder vs Chander And Ors.
2003 Latest Caselaw 1102 Del

JUDGMENT

R.S. Sodhi, J.

1. R.S.A. 35 of 1979 is an appeal against the judgment dated 3.2.1979 of the learned Additional District Judge in Civil Appeal No. 156 of 1978 which was directed against the judgment and decree dated 28.10.1975 of the Sub-Judge 1st Class, Delhi in Civil Suit No. 432 of 1970. The learned Sub-Judge decreed the plaintiff-respondent No.1, Chander's, suit with costs and gave Jag Mahinder four months to vacate the property and hand over possession to Chander and on his failure to do so within that period, the decree against Jag Mahinder was executable. The learned Sub-Judge decided the Suit Nos. 432/1970 by Chander and No. 416/1969 by Ram Kishan by a single judgment and Chander was made a party-defendant to the suit by Ram Kishan and Ram Kishan and Sheo Ram were made parties to the suit filed by Chander.

2. The First Appellate Court by its judgment dated 3.2.1979 dismissed the appeal of Jag Mahinder. The contest in the suit relates to land in Azadpur, Delhi. In the suit by Ram Kishan, the land was described as kacha kotha 13' x 9' and a compound 16' x 13' bounded by a gali in the west, house of Khachheru in the east, house of Hari Ram in the north and house of Chander, respondent No. 1, in the south. Ram Kishan claimed its purchase from one Munshi, son of Thana of Azadpur by a registered sale deed dated 18.9.1989. He filed the suit on 11.6.1969 claiming to be in possession and for a declaration against Sheo Ram and Jag Mahinder @ Mahinder.

3. Chander, respondent No.1, filed his suit on 18.9.1970 for possession against Jag Mahinder. Of the land measuring 20' x 13' bouned by a thoroughfare on the north and west each with house of Kalu on the east and house of Ram Prasad on the south, he claimed to have purchased the aforesaid property from Bhura, son of Rattan Lal, vide registered sale deed dated 10.8.1961. One Prithi Singh was co-purchaser with him and he purchased Prithi Singh's share on 11.8.1970. It was alleged that Jag Mahinder, taking advantage of the absence of Chander, trespassed on to the property, dispossessing Chander.

4. The trial court dismissed the suit of Ram Kishan but no appeal was filed by him and or Sheo Ram. They also showed no interest before the first appellate court. The main contestant before the trial court was Jag Mahinder who claimed that he was in possession on account of purchase of the house from Sheo Ram vide sale deed dated 29.5.1969. He denied ownership of Bhura, son of Rattan Lal. He also denied prior possession of Bhura or of Chander. In the alternative, Jag Mahinder claimed to be in possession for more than 12 years.

5. On pleadings of the parties issues were framed in Suit No. 432/1970 as follows :

(i) Is the plaintiff owner of the property in dispute, as alleged?

(ii) Whether the suit is barred by time or the defendant became owner by adverse possession?

(iii) Relief.

6. The trial court by an elaborate judgment decreed the suit of Chander for possession of land in Municipal No. 309-310, more particularly described in the location chart of the Commissioner dated 25.4.1972 against Jag Mahinder. The suit of Ram Kishan was dismissed.

7. The first appellate court, on reappraisal of the entire material, came to the conclusion that the findings of the trial court to the effect that it was Chander who had purchased the suit property from Bhura, son of Rattan, and had occupied it along with Prithi and later Chander had purchased the share from Prithi and became sole owner of the property. It also returned a finding that Jag Mahinder had managed to get fictitious sale deed made in his favor to cover up the act of trespass on the property of Chander and thereby went on to uphold the judgment of the trial court.

8. The substantial questions of law framed in the Regular Second appeal are -

(i) Whether the courts below had jurisdiction to decree the suit in respect of property No. 310 as no claim in respect thereof was made?

(ii) Whether the courts below have mis-read the evidence in holding that the sale deed, Ex.PW-3/1 pertains to the land claimed in the suit?

9. Learned counsel for the appellant submitted that the first appellate court has not discussed the evidence of the appellant while allowing the appeal. He further submitted that the court has mis-read the evidence qua the boundaries of the land in dispute and, therefore, the order of the first appellate court ought to be set aside. On the other hand, learned counsel for the respondent submitted that both the courts, namely, the trial court as also the first appellate court, have, as a matter of fact, held that the sale deed, Ex.PW-3/1, produced by respondent No.1 was in respect of property No.309-310, as became apparent from the area mentioned in the sale deed. And that both the courts have held that the case put up by Jag Mahinder was based on a false document, the sale deed, in his favor which was procured to cover up the act of trespass.

10. I have heard learned counsel for the parties and have carefully gone through the judgment under challenge. From a perusal of the judgment under challenge, I find that the first appellate court has considered carefully the arguments advanced before it that the sale deed did not refer to the place as bearing property No.309-310 and that the alleged sale deed did not apply to this property. The question has been dealt with by the trial court as also by the first appellate court which found that the area mentioned in the sale deed refers to properties bearing Municipal Nos. 309-310 and that the property is well defined to enable the courts to pass a decree. Merely because No.310 has not been mentioned in the sale deed or in the prayer clause of the plaint, does not mean that the respondent was not entitled to possession of the land qua of which a complete description was given in the plaint and evidence was led to the effect that the land, of which possession was sought, was fully described in the sale deed, which, the courts found, comprises of property No.309 and 310. These are concurrent finding of fact not shown by the appellant to suffer from any legal infirmity.

11. Having carefully gone through the record I find that the property in question has been carefully described in the sale deed, Ex.PW-3/1, of which description has been brought out in evidence to be property in Nos. 309 and 310. In any event of the matter, the sale deed put up by the appellant is a fake one, as has been held by the first appellate court and, therefore, no advantage could be derived from the same by the appellant. Both the questions of law framed are answered against the appellant. The concurrent findings of fact by the courts below ought not to be interfered with lightly as has been held by the Supreme Court in Kondiba Dagadu Kadam vs. Savitribal Sopan Gujar & Ors. 1999 IV AD (SC) 484. Both the courts below have carefully considered the evidence on record and arrived at concurrent findings and on further reappraisal thereof I do not find any error that should warrant interference by this court in Regular Second Appeal under Section 100 of the Code of Civil Procedure.

12. Regular Second Appeal No. 35 of 1979 is dismissed. No order as to costs.