Surendra And Ors vs Lichma
2022 Latest Caselaw 5559 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Second Appeal No. 91/2016

1. Surendra S/o Late Shri Bhagirath, aged about 64 years,

2. Bhemsain S/o Late Shri Bhagirath, aged about 61 years,

3. Ranveer S/o Late Shri Bhagirath, aged about 59 years,

4. Savitri W/o Late Shri Bhagirath, aged about 80 years,

By Caste Jat, resident of Tibbi, Tehsil Tibbi, District Hanumangarh (Rajasthan).

----Appellants

Versus

Lichma D/o Shri Hanuman W/o Shri Sajan Ram, by caste Jat, R/o Chak No. 35, STG, Tehsil Pilibanga, District Hanumangarh (Rajasthan)

----Respondent

For Appellant(s) : Mr. Parvej Khan Moyal For Respondent(s) : Mr. Deepak Nehra

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

18/04/2022

The instant second appeal has been preferred under

Section 100 of the Code of Civil Procedure, 1908 by the

defendants - appellants herein against the impugned judgment

and decree dated 5.4.2016 passed by the Additional District Judge

No.2, Hanumangarh in Civil Appeal No. 09/2013 vide which first

appeal preferred by the appellants against the judgment and

decree dated 5.1.2004 passed by Civil Judge (J.D.) Tibbi,

(2 of 7) [CSA-91/2016]

Hanumangarh in Civil Suit No. 21/2000 decreeing the suit filed by

the plaintiff, was dismissed.

The brief facts of the case are as under:-

Plaintiff-respondent herein filed a civil suit seeking

eviction of the defendants-appellants herein from the disputed

house in the year 2000 with the averments that property

described in Para-2 of the plaint is in the ownership of the plaintiff.

Gram Panchayat Tibbi had issued Patta dated 14.5.1991 in favour

of the plaintiff. The house in question was previously let out to one

Manoj Kumar S/o Om Prakash, whose wife committed suicide on

12.11.1997 in the house. Whereupon, he vacated the same.

Thereafter, the disputed house was lying vacant. It was further

pleaded that since the disputed house was lying vacant, and

defendants were in search of house, plaintiff permitted them to

reside in the house for some time. Defendants were previously

known to the plaintiff and they assured the plaintiff to vacate the

house as and when required. However, later on they refused to

vacate the house. It was further averred that the defendants

threatened to make substantial alteration in the house and

transfer the same to another. Therefore, the plaintiff filed the suit

for possession alongwith prayer of mesne profit @ Rs.300/- per

month and also for passing decree of permanent injunction.

In written statement, possession and ownership of the

plaintiff over the house in question was denied. As per the

averments made in the written statement, defendants' father Late

Shri Bhagirath was in possession of the house in question for more

than 35 years and after his death, Ranveer S/o Late Shri

Bhagirath is residing in the house. It was specifically denied that

the plaintiff was in possession of the house in question. Regarding

(3 of 7) [CSA-91/2016]

the Patta relied by the plaintiff, the same was termed as forged

and fabricated by the defendants. The electricity and water

connection were also in the name of Late Shri Bhagirath.

Learned trial court framed as many as seven issues.

After recording the statements of both the parties, learned trial

court heard the matter finally and decreed the Civil Suit No.

21/2000 vide judgment and decree dated 5.1.2004. Learned trial

court came to the conclusion that previously the house in question

was let out by the plaintiff to one person named Manoj Kumar,

whose wife committed suicide in the house on 12.11.1997.

Learned trial court relied upon the police proceedings filed in

connection with the death of wife of Manoj Kumar, in which police

found that the house in question belongedto Lichma, who let out

the same to Manoj Kumar. Disbelieving the evidence of the

defendants regarding possession over the house in question,

learned trial court came to the conclusion that defendants were

allowed to live in the house with the permission of the plaintiff.

Learned trial court also relied upon the Patta issued in favour of

plaintiff issued by Gram Panchayat Tibbi.

Aggrieved with the judgment and decree dated

5.1.2004, defendants preferred a civil first appeal before the first

Appellate Court under Section 96 CPC, which was registered as

Civil First Appeal No. 9/2013. After hearing the parties, lower first

Appellate Court vide judgment and decree dated 5.4.2016

dismissed the appeal and affirmed the judgment and decree dated

5.1.2004. Being aggrieved with the judgment and decree dated

5.4.2016, defendants have filed the instant second appeal.

Heard the learned counsel for the parties and perused

the record of both the courts below.

(4 of 7) [CSA-91/2016]

Learned counsel for the defendants - appellants herein,

submits that both the courts below erred in law as well as in facts

while relying on Patta produced by the plaintiff - respondent

herein as the same was forged one. The house in question never

remained in possession of the plaintiff - respondent. Learned

courts below failed to appreciate the evidence produced by the

defendants - appellants regarding their possession over the

house. Previously, the house in question was in possession of

Bhagirath, father of the defendants - appellants. After the death

of Bhagirath, one of the appellant Ranveer started living in the

house. He also submits that in the Panchayat record, there is no

mention regarding Patta relied by the courts below. He also

submits that Patta in question was not issued following the due

process of law. Learned counsel for the appellants submits that

the learned Appellate Court rejected their application filed under

Order 41 Rule 27 CPC without any cogent reasons. Learned

counsel prays that substantial questions of law are involved in this

appeal and prayed that the appeal be admitted.

On the other hand, learned counsel for the respondent

submits that defendants - appellants have no document to prove

title over the house in question, whereas, plaintiff - respondent

possesses Patta issued by Gram Panchayat in her favour. Plaintiff -

respondent has also proved her possession over the house in

question. Previously the house in question was let out by the

plaintiff - respondent to one Manoj Kumar. Defendants -

appellants came in possession of the disputed house only after the

house was vacated by Manoj Kumar. Learned courts below have

rightly given finding regarding possession of the house in question

in favour of the plaintiff - respondent. There is no reason to

(5 of 7) [CSA-91/2016]

interfere with the concurrent findings of the courts below. No

substantial question of law is involved in this second appeal,

hence, the same is liable to be dismissed at admission stage.

Having regard to the submissions made by the learned

counsel for the parties and after perusal of the record, it reveals

that the defendants - appellants failed to produce any title

documents with regard to the disputed house. As per evidence

produced by defendants - appellants, the disputed house was in

possession of their father Late Shri Bhagirath, who sold some of

part of the land and retained the rest of the land, which is not

disputed. In this regard, purchaser Shri Bhagirath S/o Sukhram

D.W.4 was produced as witness. In cross-examination this witness

stated that the sale-deed was registered, however, the same was

not produced.

In the above circumstances, it is evident that the

defendants - appellants failed to produce any title document over

the disputed house, whereas, plaintiff - respondent has produced

Patta with regard to the disputed house. Learned courts below

came to the conclusion that the disputed house belonged to

plaintiff - respondent. The conclusion was based on strength of

Patta as also other evidence. The evidence produced by the

plaintiff - respondent to the effect that disputed house was let out

to one Manoj Kumar could not be rebutted by the defendants -

appellants. Both the courts below after appreciating the evidence

produced by the parties, passed the judgment and decree in

favour of the plaintiff - respondent. No ground is available before

this Court to interfere with the concurrent findings given by the

courts below regarding the right of the plaintiff - respondent over

the house in question.

(6 of 7) [CSA-91/2016]

Civil case is decided on the basis of pre-ponderance of

evidence, which is in favour of the plaintiff-respondent. No

substantial question of law is involved in this appeal for

consideration of this Court.

The legality of Patta cannot be decided in this suit for

possession and recovery of mesne profit. One of the appellant

Ranveer has already filed a suit for cancellation of Patta, which

was also dismissed and appeal filed against that judgment and

decree was also dismissed. Ranveer had also filed second appeal

before this Court, registered at S.B. Civil Second Appeal No.

12/2017. The said second appeal was dismissed on account of

non-complying the per-emptory order. The restoration application

filed by Ranveer is pending before this Court.

In the considered opinion of this Court, since this

matter is not regarding declaration of any title, hence, Patta in

question cannot be meticulously scrutinized in the instant

proceedings. Suffice it to say that in comparison to defendants-

appellants, plaintiff-respondent has proved better rights over the

disputed house. She has established her possession over the

disputed house on the strength of Patta as well as other evidence.

She also succeeded to proved that after Manoj Kumar vacated the

house, the defendants - appellants started residing in the house

with the permission of the plaintiff and afterwards refused to

vacate the same. Therefore, plaintiff-respondent filed the suit for

possession and the same was decreed by the learned trial court

vide judgment and decree dated 5.1.2004 which was affirmed by

the lower Appellate Court vide impugned judgment and decree

dated dated 5.4.2016.

(7 of 7) [CSA-91/2016]

No substantial questions of law are involved in this

appeal. Accordingly, the present second appeal being devoid of

merit is dismissed at the admission stage.

(RAMESHWAR VYAS),J 10-Mak/-

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