Narayan Singh vs Madan Singh
2023 Latest Caselaw 2334 UK

      IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                    Second Appeal No.186 of 2016

Narayan Singh                                         ...............Appellant

                                       Versus

Madan Singh                                           ........... Respondent

Present:
Mr. Sudhir Kumar, learned counsel for the appellant.
Mr. M.S. Tyagi, senior counsel assisted by Mr. R.S. Bisht, counsel for the respondent.

                                                                Dated: 19.08.2023

Hon'ble Vivek Bharti Sharma, J. (Oral)

Present second appeal is being preferred against

the judgment and decree dated 26.09.2016 passed by the

District Judge, Nainital in Civil Appeal No.36 of 2015,

"Narayan Singh Vs. Madan Singh", whereby the judgment

and decree dated 11.08.2015 passed by Civil Judge (S.D.),

Nainital in Suit No.114 of 2011, dismissing the suit of the

appellant/defendant, has been upheld.

2. Learned counsel for the appellant/plaintiff would

submit that the learned trial court had framed 11 issues

out of which issue nos.1, 2 & 7 are important; that, the

learned trial court and the First Appellant Court grossly

erred in not deciding the issue no. 1 in favour of the

appellant/plaintiff despite the fact that the property

situated in Khasra No.6575 (wholly) and Khasara No.6576

(in part) was purchased in the name of the

appellant/plaintiff on 20.10.1986 by his father from Pooran

Singh, the original tenure holder. He would further submit

that while deciding issue no.1 the trial court erred in law in

not considering the fact that the appellant/plaintiff is the

owner and in possession of the disputed property i.e. the

land situated in Khasara No.6575 (whole) and Khasara

No.6576 (partly) and decided issue nos.1, 2 & 3 together

against him.

3. Learned counsel would further submit that the

issue no.7 was framed as to whether the appellant/plaintiff

and the respondent/defendants are the joint Khatedar in the

disputed land and, if yes, whether one joint Khatedar of a

Khata has any right to file a suit against the another joint

Khatedar of the same Khata or not? He would further submit

that the trial court and the First Appellate Court again erred

in deciding this issue against the appellant/plaintiff and in

favour of the respondent/defendants.

4.          Learned     senior        counsel     for     the

respondent/defendant     would      vehemently   oppose   the

contention of the counsel for the appellant/plaintiff and

would support the judgment of the trial court and the First

Appellate Court with submissions that the

appellant/plaintiff is not the owner of whole Khasra

No.6575 because the total area of the land, as per his sale

deed, in his name is, for the area of 0.424 hectare whereas

the Khasara No.6576, as per the record, is of more than

0.760 hectare. He would further submit that meaning and

notion of Khata is different from that of Khasara number;

that, the Khata number keep on changing, however the

Khasra number remains the same; that, in one Khata there

can be many tenure holders, therefore, being joint Khatedar

of one Khata does not mean that these two persons shall

have any share in same Khasra number because in one

Khata there can be many Khasras.

5. In light of the respective submissions of the

learned counsel for the parties, this Court perused the

record.

6. The learned trial court while deciding issue nos.

1, 2 and 3 observed that the appellant/plaintiff has utterly

failed to show the specific boundaries in the plaint and even

in the site plan attached therewith, therefore, the suit

property is not identifiable; that, the appellant/plaintiff

when pressed for the relief of injunction in respect of the

suit property then the details of boundaries should be very

clear and identifiable so that there is no doubt to identify

the suit property.

7. The learned trial court further observed that on

the basis of the site plain attached, the suit property is not

identifiable; therefore, it cannot be said that where the

Khasra No.6575 and Khasra No.6576, which the

appellant/plaintiff alleges to have purchased, is situated. It

is further observed by the trial court that the

appellant/plaintiff even did not make any application to get

the suit property demarcated so that it could have been

established where the Khasra No.6575 and 6576 were

situated and what other khasra numbers or property

situate in its North, East, West and South direction;

therefore, it cannot be said that the relief of permanent

injunction prayed for is in respect of the land which he

alleges to have been purchased in his name.

8. This Court perused the plaint and the site plan

(attached with the memo of appeal). The site plan shows that

Khasra No.6576 is circumscribed by v] c] l] n and Khasra

no.6575 is separate; however, this site plan does not show

as to what lies in the East, West, South and North of these

Khasras.

9. On query of the Court, even counsel for the

appellant/plaintiff admitted that it is not described in the

site plan that what lies in the East, West, South and North

of these Khasras. In considered view of this Court, learned

trial court is justified in observing that the property of

Khasra nos.6575 and 6576 is not identifiable in connection

with the property the appellant/plaintiff.

10. Learned trial court is again right in observing

that by the plaint and the site plan it cannot be said that

the appellant/plaintiff is praying for the relief of permanent

injunction in respect of the same land, which he alleges to

have purchased in his and his brother's name or some

other land which respondent/defendants dispute and claim

to be the rightful owner and in possession.

11. In respect of issue no.7, it is admitted during the

course of arguments that Khata and Khasra number are

different and Khata Number keep on changing and there

can be many Khasras in one Khata; therefore, being the

same joint Khatedar does not mean that the

appellant/plaintiff and the respondent/defendants are the

joint owner of the same Khasras; i.e. to say, they may be the

owner and in possession of different Khasra Numbers of the

same Khata. It is further pertinent to observe that whether

two persons are the joint khatedar or not can be decided on

the basis of the document, but the relief for the permanent

injunction can be granted only if the property is clearly

identifiable so that there remains to be no dispute after

grant of relief of the permanent injunction.

12. In view of the above, this Court is of the

considered view that no substantial question of law arises

for consideration in the present appeal. It is the question of

facts only, which have been correctly decided by the trial

court and the First Appellate Court. Accordingly the instant

second appeal is dismissed in limine.

(Vivek Bharti Sharma, J.) 19.08.2023 BS