Singh Nishad vs Smt. Ballo Devi And Others"
2023 Latest Caselaw 2926 UK

             Office Notes, reports,
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             Registrar's order with
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                                      SA No. 150 of 2022
                                      Hon'ble Vivek Bharti Sharma, J.

Present Mr. Nikhil Singhal, counsel for the appellant/plaintiff.

Present Mr. Narendra Bali, counsel for the respondents/defendants.

2. Present second appeal is preferred against the impugned judgment and order dated 20.04.2019 passed by Senior Civil Judge, Haridwar in O.S. No. 87 of 2018 "Veer Singh Nishad Vs. Smt. Ballo Devi and others" and judgment and order dated 17.08.2022 passed by 4th Additional District Judge, Haridwar in Civil Appeal No. 30 of 2019.

3. Counsel for the appellant/plaintiff would submit that the appellant/plaintiff has filed a suit with the prayer that he was in possession of the suit property by way of family settlement between the parties and apprehending the interference in the peaceful possession of the suit property by the respondents/defendants, therefore, to restrain the respondents/defendants from interfering in the peaceful possession of the appellant/plaintiff in respect of the suit property.

He would further submit that the trial court and the First Appellate Court have erred in not appreciating the fact that there were the sufficient and ample evidence in favour of the appellant/plaintiff proving the family settlement and trial court erred in not appreciating the same.

4. Per contra, counsel for the respondents/defendants would support the impugned judgment and decree passed by the trial court and the judgment of the First Appellate Court with the submissions that the trial court has rightly observed that the family settlement was not duly proved as per law.

He would further submit that there was specific averment by the respondents/ defendants that the appellant/plaintiff has come in the possession of the suit in question forcibly, therefore, the possession of the appellant/plaintiff cannot protected by decree of the court.

5. Perused the impugned judgment of the trial court and the record available on the file.

6. In paragraph 24 of the impugned judgment dated 17.08.2022 has been recorded the finding that the alleged family settlement/agreement paper nos. 10Ga/1 and 10Ga/2 (at page 35) is not a registered document and only the photocopy of the same was filed before the trial court, therefore, the same cannot be accepted as a proved document.

It is further observed in this paragraph that, even if alleged family settlement/agreement is accepted for sake of agreement as correct, only the names of Pyare Lal, Sher Singh and the name of the present applicant is written in the said family settlement/agreement and it is well establish principle of law that no third party can be a part of the family settlement.

7. Counsel for the appellant/plaintiff is unable to explain that why the family settlement/agreement was not placed before the trial court in original and if the same was not in original with him at the relevant point of time, whether any application to place the same in original by way of secondary evidence was filed or not; that, there is concurrent finding in the impugned judgments against the appellant/plaintiff.

8. There is no illegality or perversity in the impugned judgment passed by the trial court as well as the First Appellate Court which may give rise to any substantial question law warranting adjudication by this Court in the second appeal. Since no substantial question of law is shown to have arisen, the appeal is liable to be dismissed at the admission stage.

9. In view of the above discussion, the second appeal deserves to be dismissed and the same is hereby dismissed in limine.

(Vivek Bharti Sharma, J.) 03.10.2023 Akash