Kalyan Singh vs Ravinder Kaur (D)Thru Lrs. And Anr

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9332 OF 2018 (Arising out of SLP(C)No. 34460 of 2016)

KALYAN SINGH Appellant(s)

VERSUS

RAVINDER KAUR (D) THR. LRS. Respondent(s)

O R D E R

R. BANUMATHI, J.

(1) Leave granted.

(2) This appeal arises out of judgment dated 13th May, 2016

passed by the High Court of Punjab and Haryana at Chandigarh in

Regular Second Appeal No.859 of 1988 in which the High Court

has reversed the judgment of the First Appellate Court and

restoring the judgment of the trial court thereby affirming the

decree in favour of respondents/plaintiff for declaration and

possession.

Signature Not Verified (3) Digitally signed by MAHABIR SINGH Date: 2018.09.14

The respondents-plaintiff has purchased the suit property 17:33:13 IST Reason:

admeasuring an extent of 852-1/3 sq. yards by a sale deed dated

6th September, 1978. Alleging that the appellant-defendant has 2

taken forcible possession of the suit property, the

respondents-plaintiff has filed the suit for declaration and

possession. The trial court decreed the suit in favour of the

respondents-plaintiff holding that the vendor of the plaintiff

had appeared and testified about sale deed dated 6 th September,

1978 that physical possession of the property covered under the

sale deed was delivered to them.

(4) Being aggrieved, the appellant herein filed appeal before

the Appellate Court which was allowed. After referring to the

Report of the Local Commissioner that the respondents-plaintiff

is in actual possession of 955 sq. yards as against 852-1/3 sq.

yards purchased by them and that the consolidation records are

missing and also that there was no pucca burji, the First

Appellate Court reversed the judgment of the trial court

thereby dismissing the respondents-plaintiff’s suit. In the

second appeal, the High Court has reversed the judgment of the

First Appellate Court and held that the Local Commissioner has

not verified the available map with the Patwari and that based

on the Local Commissioner’s Report, the First Appellate Court

ought not to have reversed the judgment and decree of the trial

court.

(5) We have heard Mr. Rakesh Kumar Khanna, learned senior

counsel appearing for the appellant and Mr. Sangram S. Saron,

learned counsel appearing for the respondents. 3

(6) As seen from the sale deed filed (Annexure CA-1 of the

paper book), the respondents-plaintiff has purchased the

property, an extent of 852-1/3 sq. yards in Khasra No.316/1.

As per the evidence of the respondents-plaintiff-vendor, the

respondents-plaintiff was put in physical possession on the

land covered under the sale deed viz. an extent of 852-1/3 sq.

yards. As pointed out by the First Appellate Court that after

the local inspection of the suit property the Local

Commissioner in his Report, Ex.D1/K, has observed that the

respondents-plaintiff is in possession of 955 sq. yards of the

land though she (Ravinder Kaur) actually purchased 852 sq.

yards only and the said Report was not challenged by the

respondents-plaintiff. As pointed out by the First Appellate

Court when the Local Commissioner’s report was not challenged

by the plaintiff, the oral testimony of Sajjan Singh (PW-2),

vendor of the plaintiff, and her husband, Ripudaman Singh (PW-

1), does not substantiate the claim of the plaintiff that the

appellants have encroached upon the suit property. The claim

of the respondents-plaintiff that the appellant has encroached

upon the property and took forcible possession under the garb

of temporary injunction in the earlier suit remains

unsubstantiated. Further there are no clear averments as to

the alleged date of encroachment and the steps then taken by

the respondents-plaintiff. In our considered view the High

Court has not considered the findings recorded by the First

Appellate Court which is based upon the appreciation of the

evidence and Report of the Local Commissioner. 4

(7) That apart in the second appeal, no question of law much

less substantial question of law arose and the substantial

question of law framed by the High Court is not a substantial

question of law but purely a question of fact in dispute

between the parties. The impugned order of the High Court in

Regular Second Appeal No.859 of 1988 is not sustainable and is

accordingly set aside.

(8) In the result, the appeal is allowed, the judgment of the

First Appellate court is restored and resultantly the suit of

the respondents-plaintiff is dismissed.

..........................J. (R. BANUMATHI)

..........................J. (INDIRA BANERJEE) NEW DELHI, SEPTEMBER 11, 2018.