Heard Sri R.C. Singh, learned counsel for the appellant and Sri N.K. Chaturvedi, learned counsel appearing on behalf of the caveators-respondents.
This is defendant's second appeal. The plaintiffs filed a suit being suit no. 1230 of 1981 for permanent injunction restraining the defendant-appellant from interfering in the peaceful possession over the property in dispute. In the suit, the claim of the plaintiffs was that Rakba one decimal of Araji no. 470/1 is their Sahan land and is in their possession. Both the plaintiffs and defendant were the Zamindars and belong to the same family. The trial court vide its order dated 7.4.2005 has held that the plaintiffs are the owners and are in possession over the property in dispute and the defendant is not in possession over the property in dispute. The trail court accordingly decreed the suit and restrained the defendant from interfereing with the peaceful possession of the plaintiffs over the property in dispute.
The trial court held that there was a partition amongst the members of the family. The claim of the plaintiffs was that one decimal land is situated in Araji no. 589. In the consolidation proceeding, the said land was numbered as 470/1 and their names are duly recorded. It is a Sahan land and is recorded as a Seer land in the revenue record. The trial court held that in respect of the same dispute, a suit no. 32 of 1966 was filed by the father of the defendant Ayodhya Singh against Vindhyachal Singh and others. In the suit, Trilok Singh, Ishlok Singh, Aashman Singh and Lakhraj Singh were the plaintiffs. In the said suit, the parties entered into compromise and in respect thereof a compromise deed dated 29.7.1971 was executed. In the said compromise, the disputed land has been left in favour of the father of the plaintiffs. The suit was decided finally on 21.7.1973. Against the order of the trial court, first appeal was dismissed against which second appeal was filed which stood abated. The defendant contested the suit on the ground that the compromise was forged. The trial court on the basis of the evidence has held that the compromise deed was signed by Aashman Singh. The trial court observed that the defendants failed to prove that the disputed land belongs to them while the evidences show that the disputed land belongs to the plaintiffs and is in possession of the plaintiffs. The trial court further held that so far as the claim of the defendant about the construction on an area of 14X12 foot on the disputed one decimal land is concerned, in the compromise deed itself it was mentioned that the defendants were an unauthorized occupant. Against the order of the trial court, the defendant filed Civil Appeal no. 25 of 2005 which has been dismissed by the order dated 12.12.2011. Being aggrieved, the present second appeal is being filed.
Learned counsel for the appellant submitted that the decision in suit no. 32 of 1966 will not be resjudicata. He submitted that the entries in the revenue record made in consolidation proceeding cannot be read as evidence. The appellant is co-tenant of Plot No. 594 old and 598 (new). He submitted that the agreement was unregistered and, therefore, is not admissible as evidence. The second appeal filed in this Court arising from suit no. 32 of 1966 stood abated therefore, the principle of resjudicata shall not be attracted. He submitted that the substantial question of law arising in the present case requires consideration.
I have considered the submissions. I do not find substance in the argument of learned counsel for the appellant. In the suit, the relief was sought for permanent injunction restraining the respondents not to interfere in the peaceful possession over the property in dispute. In the said suit, it has to be seen that who is in legal possession over the property in dispute.
In order to arrive to the conclusion that the plaintiffs were in possession over the property in dispute, the trial court placed reliance on a compromise made in suit no. 32 of 1966 wherein disputed property has been given to the plaintiffs. The name of the plaintiffs are also recorded in the revenue record in a consolidation proceeding in respect of the property in dispute. The trial court found that the plaintiffs succeeded in establishing that they are in possession over the property in dispute and the defendant failed to prove their possession over the property in dispute. The conclusion drawn by the trial court is based on the evidence on record. The view of the trial court has been affirmed by the appellate authority.
I do not find any error in the impugned order. The findings recorded by both the courts below are findings of fact based on appraisal of the evidence on record. No substantial question of law is involved in the present appeal. The second appeal is accordingly dismissed.
Dated: 25th May, 2012 OP