Balak Ram vs Shakuntla Devi And Ors
2023 Latest Caselaw 1118 j&K

                                                                            Sr.No. 04
                HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                              AT JAMMU
                                                  CSA No. 03/2010
                                                  CM No. 6987/2022
                                                  IA Nos. 19/2014 (19/2014) &
                                                  03/2010 (03/2010)

Balak Ram                                                .... Appellant(s)/ Petitioner(s)

                  Through :- Mr. Kuldip Raj Gupta, Advocate.

        V/s

Shakuntla Devi and ors.                                               ....Respondent(s)
                  Through :- Mr. V.R. Wazir, Sr. Advocate with
                             Mr. Amit Raina, Advocate and
                             Mr. Neeraj Magotra, Advocate.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                            ORDER

30.05.2023 Oral

1. In the instant Civil 2nd Appeal, the appellant has thrown challenge to

the judgment and decree dated 18.11.2009 (for short the, "impugned judgment

and decree") passed by the Court of Additional District Judge, Jammu

(hereinafter referred to as the "Appellate Court") in an appeal titled as,

"Shakuntla Devi and ors. vs. Balak Ram".

2. The facts leading to the filing of the instant appeal would reveal that

the plaintiff/appellant herein filed a civil suit for possession of land measuring

03 Marlas covered under Survey No. 21/min situated at Village Bahu Fort,

Jammu while seeking the following relief:-

"..................It is prayed that a decree for possession of 03 Marlas of vacant land comprising Khasra No. 21/min situated at Village Bahu Fort, Jammu alongwith demolition of illegal construction in question during the pendency of prolonged litigation against the parties, be granted in favour of the plaintiff against the defendant with costs."

3. One-Bal Krishan S/o Paras Ram R/o Bahu Fort, Jammu-

predecessor-in-interest of the present respondents was impleaded as defendant in

the said suit.

4. The defendant filed written statement to the suit, denying the claim

of the plaintiff to be the owner of the suit land, however, claimed that the suit

land had been in his possession and occupation, whereupon the house and shops

had been constructed.

5. During the pendency of the suit (supra), the original defendant-

Bal Krishan died, whereupon the present respondents came to be substituted in

his place as defendants.

6. On the pleadings of the parties, the trial Court being 3rd Additional

Munsiff, Jammu framed following five issues:-

"1. Whether the suit is time barred? OPD

2. Whether the suit has not been properly valued for purposes of Court fee and jurisdiction? OPD

3. Whether the plaintiff is owner of suit land? OPP

4. Whether the plaintiff was dispossessed by defendant in January, 1985? OPP

5. Relief."

7. Before the trial Court, the plaintiff besides appearing himself in the

witness box also examined four witnesses, namely, Prem Dursal, Jagdish Raj,

Nek Ram and Gulam Nabi-Tehsildar in support of his case and while appearing

as his own witness, the plaintiff reiterated the stand taken in the plaint, however,

further stated that the land in dispute belonged to one-Lakhu, who had purchased

the same in an auction proceedings while denying the land to be belonging to

one-Mst. Chatoo.

8. The original defendant-Bal Krishan besides entering himself into

the witness box also examined three witnesses, namely, Hussain Mohd., Vishnu

Nath Bali and Vishwa Nath-Head Record Keeper and in his statement before

the trial Court, the defendant stated that the suit land initially belonged to

one-Ganjara and thereafter to his wife-Gaseeti, whereafter the same devolved

upon Mst. Chatoo and in her favour, a mutation was also attested and further

stated that thereafter his uncle-Agya Ram owned the land in question, where he

opened a School, as also has been residing therein since 1968-69 and also stated

that adjacent to the said land existed a vacant portion of land falling under

Khasra No. 21 belonging to the plaintiff, whereupon the plaintiff had constructed

his residential house.

9. The trial Court while deciding the suit on 10.03.2004, in the first

instance, decided Issue No. 1 as to whether the suit is time barred, the onus

whereof to prove was put on the defendants/respondents herein. The trial Court

held that the suit being a suit for possession and not for recovery of possession,

as provided under the provisions of Section 9 of the Specific Relief Act, is not

barred by limitation, in that, the plaintiff have had alleged his dispossession from

the land in question in the year 1985 and that the suit came to be instituted in the

year 1990 well within the prescribed period of limitation.

The trial Court while deciding Issue No. 3 being as to whether the

plaintiff is the owner of the suit land, onus to prove whereof had been put on the

plaintiff, concluded on the basis of evidence that the plaintiff is the owner of the

land and, accordingly, decided the issue in favour of the plaintiff.

10. Aggrieved of the judgment and decree passed by the trial Court on

10.03.2004, the respondents herein filed an appeal on 02.04.2004 before the

Appellate Court and the Appellate Court decided the said appeal on 11.12.2008,

holding that the same to be without any merit.

It is significant to note here that during the pendency of the appeal,

the appellants/respondents herein had filed an application under Order 41 Rule

27 of the CPC, seeking leave of the Appellate Court to produce/adduce

additional evidence, wherein the appellants/respondents herein had averred that

during the pendency of the appeal, „Nishandehi' of the land in question had been

done by the Tehsildar, Girdawar and Partwari on 05.05.2004, reflecting the

position of the land, as also its possession with the respective parties.

11. Being aggrieved of the judgment of the Appellate Court dated

11.12.2008, whereby their appeal came to be dismissed, the

appellants/respondents herein filed Civil Second Appeal bearing No. 03/2009

before this Court, which appeal came to be remanded back and disposed of by

this Court on 16.07.2009 in presence of the counsel for the respondent/appellant

herein after counsel for the respondent conceded that the judgment and decree

passed by the Appellate Court was not sustainable, in that, the Appellate Court

had not considered the additional evidence, that had been led by the

appellants/respondents before the Appellate Court.

12. The Appellate Court upon remand of the matter by this Court in

terms of order dated 16.07.2009 consequently passed the judgment and decree

under challenge in the instant Civil 2nd Appeal dated 18.11.2009 reversing the

judgment and decree dated 10.03.2004 passed by the trial Court, dismissing the

suit of the plaintiff/appellant herein, holding that the plaintiff/appellant herein

failed to prove to be the owner of the suit land measuring 03 Marlas covered

under Survey No. 21/min situated at Village Bahu Fort, Jammu.

13. The appellant herein has questioned the impugned judgment and

decree on the grounds urged in the memo of appeal.

14. This Court while considering the instant appeal on 24.08.2011,

framed following two substantial questions of law:-

"1. Whether the Appellate Court failed to consider the relevant documents relied upon by the appellant and

the additional documents relied upon by the respondents, which according to the appellant, were not proved by the respondents before the Appellate Court.

2. Whether the conclusion of the Appellate Court was in tune with the pleadings of the parties."

15. Before adverting to the aforesaid substantial questions of law, a

deeper and closer examination of the evidence on record becomes imperative.

The plaintiff/appellant herein, as noticed in the preceding paras, examined

besides himself the witnesses, namely, Prem Dursal, Jagdish Raj, Nek Ram and

Gulam Nabi-Tehsildar. In his statement, the plaintiff/appellant herein while

appearing as his own witness, claimed to have become the owner of the land in

question pursuant to sale effected by one-Lakhu. The perusal of the record of

the trial Court would reveal that the said Lakhu, in fact, had purchased in Court

auction proceedings a one storey house, reflected in the Auction Certificate,

which Certificate, however, does not reflect any land to have been purchased by

the said Lakhu. Insofar as the witnesses produced by the plaintiff/appellant

herein, namely, Nek Ram, Moharar Chowki, Bahu Fort, and Abdul Gani-Naib

Tehsildar are concerned, the said witnesses only stated that the plaintiff/appellant

herein was put into possession of the shops constructed over Khasra No. 21/min

after the original defendant, namely, Bal Krishan was found to have committed

offences under Sections 488/147 of the RPC qua the said shops. The perusal of

the plaint/suit filed by the plaintiff/appellant herein as well refers and relates to

the land measuring 03 Marlas covered under Survey No. 21/min, wherein it is

being admitted that the said suit land was occupied by the defendants and three

pacca rooms had been constructed thereon. The plaintiff/appellant herein,

however, has not produced any documentary evidence to prove the factum of his

being the owner of the land in question except his own oral evidence, wherein he

stated that the land in question came to be purchased by him from Lakhu, who,

in turn, is stated to have purchased the same through auction, whereas record

reveals that the said Lakhu purchased a one storey house and not the land.

On the contrary, the additional evidence produced by the

respondents herein (the appellants before the Appellate Court), produced one

Nisar Ahmed by way of additional evidence besides having produced witnesses,

namely, Hussain Mohd. Vishnu Nath Bali and Vishwa Nath-Head Record

Keeper before the trial Court. The above named Nisar Ahmed (DW-5) before

the Appellate Court deposed that as per the report in Survey No. 21, there is

01 Kanal and 11 Marlas of land and on spot, 03 Marlas out of the said land is

under road and 01 Marla under the possession of one-Pushpa Devi, whereas rest

of 01 Kanal and 07 Marlas is under the possession of the plaintiff-Balak

Ram/appellant herein and as per the measurement of the site plan of Survey

No. 18/min is 02 Marlas, 19/min is of 13 Marlas and 20 min is of 14 Marlas in

possession of the applicant. The said Nishandehi report produced by the

respondents herein being the appellants before the Appellate Court, came to be

proved and exhibited as EXPW-NA. The aforesaid Nishandehi report reveals

that the said Nishandehi had been conducted on 05.04.2004 in presence of the

plaintiff-appellant herein (Balak Ram) by the revenue officers.

The Appellate Court while considering the aforesaid additional

evidence led by the respondents herein/appellant before the Appellate Court and

upon analyzing the entire evidence on record led by the parties before the trial

Court besides the aforesaid additional evidence, observed that the

plaintiff/appellant herein had laid a claim over 03 Marlas of land covered under

Survey No. 21/min, claimed to have been purchased by his ancestor in Court

auction. The Appellate Court, therefore, opined that the plaintiff failed to prove

to be the owner of 03 Marlas of land covered under Survey No. 21/min.

It is pertinent to note here that when the respondents herein

(appellants before the Appellate Court) led additional evidence, the

plaintiff/appellant herein did not get the said evidence led rebutted or

contradicted and the Appellate Court, therefore, rightly observed that in order to

succeed in a suit for possession of the land, the plaintiff/appellant herein has to

prove the title over the said land. The Appellate Court rightly observed that the

plaintiff/appellant herein have had his proprietary land under Survey No. 21, as

had been endorsed and authenticated by the Nishandehi report produced by way

of additional evidence before the Appellate Court and not any portion of the land

under Survey No. 21/min including the 03 Marlas claimed by the

plaintiff/appellant herein in the suit. The conclusions drawn by the Appellate

Court while passing the impugned judgment and decree manifestly demonstrate

that the Appellate Court had been alive not only to the pleadings of the parties,

but also to the respective evidence led by the parties before the trial Court, as

also before it. The Appellate Court, therefore, seemingly, has rightly reversed the

judgment and decree passed by the trial Court having concluded that the

plaintiff/appellant herein failed to discharge the onus to prove the Issue No. 3

framed by the trial Court that he is the owner of the suit land being 03 Marlas

covered under Survey No. 21/min, so much so, the revenue extracts pressed into

service by the plaintiff/appellant herein in support of his claim qua the land in

question were never proved either before the trial Court or the Appellate Court

by the plaintiff/appellant herein, though otherwise also, in law, the revenue

entries neither create nor extinguish a right in a property.

16. It needs to be mentioned here that though the ambit and scope of

2nd appeal enshrined under Section 100 CPC has been considerably narrowed

down and substantially curtailed under and in terms of Civil Procedure

(Amendment) Act of 1976, yet it transpires from a deeper examination of the

impugned judgment and decree passed by the Appellate Court that the same does

not call for any interference.

17. Viewed, thus, what has been observed, considered and analyzed

hereinabove, the appeal fails and is, accordingly, dismissed.

(Javed Iqbal Wani) Judge Jammu:

30.05.2023
Ram Krishan



                              Whether the judgment is speaking?     Yes
                              Whether the judgment is reportable?   Yes/No