This appeal has been preferred against the judgment dated 7.4.2016 passed by Additional District Judge Court No. 16 Meerut in civil appeal no. 147 of 2013 (Smt. Krishna Vs. Triloki and another).
In original suit no. 88 of 2009 (Smt. Krishna Vs. Triloki and another), the plaint case in brief was that plaintiff is owner of plot no. 526 and 527 of village Chhajjupur. The defendants have no right title or concerned with this part of land, but due to enmity defendants are trying to interfere in the property of plaintiff detailed in plaint map by letters A,B,S,D which is a part of plot no. 527, therefore, plaintiff has filed suit for permanent injunction for restraining defendants.
After admitting written statement, framing issues and accepting evidences of the parties, the Court of Civil Judge (J.D.) Hawali, Meerut had dismissed the original suit with finding that plaintiff had failed to prove his case. The trial court had also held that on spot the area claimed by plaintiff is more than that of plot no. 527 as mentioned in khatauni. The trial court had also held that defendants are not trying to interfere in any partition of plot no.527, on the other hand, plaintiff himself is in occupation of more area than he should be according to khatauni. The trial court had also held that this pleading of plaint is incorrect that plaint map detailed by letters 'A,B,S,D', is a part of plot no. 527. On the basis of these findings, trial court had dismissed the original suit.
Against the judgement of trial court, civil appeal no. 147 of 2013 was preferred which was heard and dismissed by the impugned judgement dated 7.4.2016 of the first appellate court. In this judgement, first appellate court had independently appreciated the evidence, specially the evidence of PW-1 Krishna Devi plaintiff, and reached to the conclusion that plaintiff had not proved her case and her pleadings in plaint are incorrect. First appellate court had also held that plaintiff had not come before the court with clean hands and she is in occupation of more land than area of 527 mentioned in the khatauni. On the basis of these findings, first appeal was also dismissed.
Against the judgements of trial court as well as first appellate court, present second appeal has been preferred by the plaintiff of the original suit.
Learned counsel for the appellant contended that defendants are claiming their rights on plot no. 529 of village Chhajjupur which is a big plot and he had not prove that over which portion they have been granted lease (patta). The area and location of defendants' land was not proved but lower courts had erroneously dismissed the suit of plaint.
In this matter plaintiff's case is that she is owner of plot no. 527 and disputed land , detailed in plaint map by letters 'A,B,S,D' is part of this plot no. 527. Whether the disputed land detailed in plaint by letters A,B,S,D is portion of plot no. 527 or any other plot, can be verified only by survey. The burden of proof of this fact is on plaintiff/appellant that disputed land is a part of plot no. 527, but she has failed to prove it and had not taken any measure or attempt to get said property surveyed. On the contrary when defendants had tried to get the land surveyed privately, then plaintiff had filed suit for permanent injunction on that cause of action. She had also tried to restrain the defendants from getting the land surveyed and verified the exact location of properties of the parties from the evidences. It has also been found, as has been concurrent finding of facts of two lower courts, that area of plot no. 527 according to khatauni is 0.1850 hectare on spot and plaintiff is in occupation 0.1957 hectare land, which is 0.0107 hectare more land. Thus this finding of the two lower courts are apparently found correct that plaintiff/appellant herself had been proved in the unauthorized occupation of land on spot and filed suit on the basis of incorrect facts.
The only dispute in this matter was as to whether disputed land, detailed in plaint map by letters 'A,B,S,D' is a part of plot no. 527 or not. This was not a question of law but was a question of fact that could be decided on the basis of evidence as has been done by the lower court. In this matter plaintiff had not tried to get the disputed spot surveyed and it has also been found that she is in unauthorized occupation of more land and she has filed suit on incorrect facts. Concurrent finding of the two lower courts are based on proper appreciation evidences. These findings are apparently correct and there is no infirmity or perversity in it, so such findings cannot be interfered in second appeal by re-appreciation of evidence. .
On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law, much less a substantial question of law was involved in the case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant- plaintiffs can be sustained.
In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
Order Date :- 27.5.2016 Sanjeev