HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APEAL NO. 16 OF 2003 Attar Singh (Since deceased) through L.Rs. ….Plaintiff-Appellant Vs. Rakesh Singh & another ….Defendants-Respondents Dated 10.6.2008 Hon’ble Rajesh Tandon, J. Heard Sri V.K. Bisht, Sr. Advocate assisted by Smt. Seema Sirohi, counsel for the appellant and Shri Pramod Belwal, counsel for the respondent. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 8.4.2003 passed by the District Judge, Uttarkashi in Original Suit No. 47 of 1998. 3. Briefly stated, a suit was filed by the plaintiff being suit no. 47 of 1998 praying for ejectment and recovery of damages. According to the plaint averments, the plaintiff is recorded as bhumidhar of the land khet no. 1982 ‘Aa’ area 0.005 Hectare situate at Khasra no. 120, village Barahat in the fasli year 1403 to 1408. In the year, 1991 after the earthquake, the defendants started residing in the aforesaid land of the plaintiff by putting ‘Tripal’. After January, 1993, when the other persons of earthquake affected were rehabilitated, the plaintiff asked the defendants to vacate the land in question but the defendants did not vacate the same. The defendants assured the plaintiff 2 that they will vacate the land in question. It has been alleged that the defendants do not want to vacate the premises and intend to grab the land in question. The plaintiff has given the notice for ejectment to the defendants but they have denied to have received the same, hence, the present suit. 4. The defendants have filed the written statement stating therein that they have taken the possession of the land in dispute in the capacity of tenant of late Smt. Shyama Devi. In the year 1988, Smt. Shyama Devi gave a proposal to the defendant for selling the land in dispute and received a sum of Rs. 25,000/- towards advance. In paragraph no. 13 of the written statement, it has been stated as under:- “fd tckons; foi{khx.k us Jherh ';kek nsoh dks :0 25]000@& fookfnr Hkou Hkwfe ds vnk fd;s A pwafd ml le; Jherh ';kek nsoh ;k=k tkus dh tUnh esa Fkh vr% og fodz;ukek iathd`r ugha dj ldh vkSj ;k=k ls okil vkus ij fodz;ukek nsus dk vk’oklu nsdj pyh x;h A ;k=k ls okil ykSVus ij Jherh ';kek nsoh us foi{khx.k dks crk;k fd dqN yksx mldh Hkwfe dks /kks[ks ls fdlh laLFkk ds uke ij dj fn;k gS ftl QthZ laLFkk ls oknh Hkh lacaf/kr gS A mDr laLFkk ds fo:) Jherh ';kek nsoh us ,d okn ftyk U;k;k/kh’k] mRrjdk’kh ds U;k;ky; esa lafLFkr fd;k tks ewy okn la0 34 lu~ 1998 esa iathd`r gqvk A” 5. It has been stated that the defendants are in peaceful possession over the land in dispute and the plaintiff has no right over the said property. The suit of the plaintiff is based on the wrong facts. The plaintiff wants to grab the land in question. The suit is liable to be dismissed. 6. On the pleadings of the parties, the trial court has framed the following issues:- 3 “1. Whether the plaintiff is owner and bhumidhar of the land in suit and defendants are in illegal possession over the said land? 2. Whether the land in suit was purchased by the defendants from its owner Smt. Shyama Devi in the year 1988 and since then they are in possession thereon? 3. Whether the plaintiff is entitled to mense profit as claimed by him? 4. To what relief, if any, is the plaintiff entitled? 5. Whether property in suit all in porti9on 9 muthi of khasra no. 1982 and 1983 as alleged in para 19 of the W.S.? 7. The plaintiff has examined Atar Singh as P.W.1 and Anand Prasad as P.W.2. Towards the documentary evidence, the plaintiff has produced paper nos. 9 ga to 20 ga per list 8 ga, paper no. 34 ga per list 33 ga, paper no. 55 ga i.e. copy of khatauni, paper no. 73 ga i.e. copy of affidavit of Dayal Lal and paper no. 74 ga i.e. order dated 22.9.1999 passed in suit no. 35 of 1998. 8. The defendants have examined Smt. Dayarani as D.W.1 and Shri Vijay Singh as D.W.2. Towards the documentary evidence, the defendants have produced copy of plaint filed in suit no. 11 of 1986 i.e. paper nos. 40 ga to 41 ga, paper nos. 51 ga to 53 ga per list 50 ga and paper no. 77 ga. 9. While deciding issue no. 1 as to whether the plaintiff is owner and bhumidhar of the land in suit and defendants are in illegal possession over the said land, issue no. 2 as to whether the land in suit was purchased by the defendants from its owner Smt. Shyama Devi in the year 1988 and since then they are in 4 possession thereon and issue no. 5 as to whether property in dispute falls in khasra no. 1982 and 1983 as alleged in para 19 of the W.S., the trial court has relied upon the paper no. 52 ga i.e. copy of sale deed which has been produced by the defendant. The trial court has further relied upon the commissioner report i.e. paper no. 63 ga/2 and has recorded the findings to the following effect:- “udy c;ukek dkxt la[;k 52&x dk voyksdu fd;k tk; rks Jherh vfgY;k nsoh fo/kok Jh jkepUnz tks’kh }kjk ,d dqBkj pkSd uEcj 961] tks th.kZ&’kh.kZ gksdj VwV x;k rFkk blh dqBkj dh cxy esa lxokM+h uEcj 960] ftldh uki Jh exu pUn diwj dh jlksbZ ls jkLrs rd 36 fQV yEckbZ o Jh lR;s’oj izlkn ds [ksr ls vius pkSd dh rjQ 30 fQV pkSM+k] 8 eqBh jDok dks 1]000@& :0 esa vrj flag usxh ,sMoksdsV mRrjdk’kh okyksa dks cspk vkSj bUgksaus ;g Hkh Lohdkj fd;k fd blh txg ij edku cukus dh btktr ikus ds fy, uxjikfydk esa nj[okLr ns j[kh gS A 9- vr% bl nLrkost ls oknh dks tks tehu Jherh vfgY;k nsoh }kjk csph xbZ] mldh uki dqy 36 fQV x 30 fQV gSA 10- oknh }kjk orZeku okn [ksr uEcj rFkk mldk fooj.k nsrs gq, izLrqr fd;k x;k gS ysfdu c;ukes ds vuqlkj okn&i= esa mldh dksbZ uki vafdr ugha dh xbZ A okn ds nkSjku gh ekSds ds eqvk;us ds fy, ,d dfe’uj dh fu;qfDr djrs gq, mUgsa ekSds ij Hkstk x;k ftudh fjiksVZ dkxt la[;k 63&x@2 gS A lacaf/kr dfe’uj us nksuks Ik{kksa dks fyf[kr lwpuk nsus ds ckn ekSds dk eqvk;uk fd;k A fjiksVZ ds iSjk 4 esa oknh ds edku dh tks uki&tks[k dh xbZ mlesa fcUnq B-1 ls fcUnq B-2 mRrj&nf{k.k 9-10 ehVj o xsV lfgr 10 ehVj] blh rjg fcUnq B ls fcUnq B-3 iwjc&if’pe 11-5 ehVj ik;k x;k A oknh ds Hkou ls iwoZ fn’kk dh vksj mes’k pUnz vkfn dh yxh lVh nhoky] nf{k.k 5 fn’kk esa oknh dh Lo;a dh ckm.Mªh&oky oknh ds xsV ds ckj mfu;ky dh ckm.Mªh&oky ikbZ xbZ A lacaf/kr dfe’uj us ekSds ij izfroknhx.k ds nks dV[kM+s o nks ySfVªu dPps cus gq, ik, A 11- vr% dfe’uj fjiksVZ ds eq[; fcUnq esa oknh dk edku B-1, B-2, B-3 rFkk B-4 ls ftl :Ik ls fpfUgr fd;k x;k gS vkSj bldh uki ftl :Ik ls vafdr gS mlls bldk {ks=Qy 9-10 ehVj x 11-5 ehVj Li"V gksrk gS A oknh rFkk izfroknhx.k ds edkuksa ds e/; vke jkLrs dk ftdz fd;k x;k gS tks fjiksVZ dfe’uj ds vuqlkj [kljk la[;k 1982 ^c* ds :I esa yky frjNh jks’kukbZ ls iznf’kZr fd;k x;k gS ftldk jDck 51 oxZehVj crk;k x;k vkSj blh HkwHkkx ij izfroknhx.k ds nks dV[kM+s vkSj nks 'kkSpky;ksa dk fufeZr gksuk crk;k x;k gS A” 10. The trial court has further recorded the finding that even if Smt. Shyama Devi has executed no document in favour of the defendants, the plaintiff is not entitled to get the benefit of it. The trial court, therefore, has come to the conclusion that the plaintiff is not the owner of the land in dispute and, therefore, the defendants cannot be evicted from the land in dispute. 11. On the basis of the aforesaid, the trial court has dismissed the suit of the plaintiff. 12. Counsel for the appellant has submitted that the trial court has not considered the khatauni (paper no. 10 Ga) showing the plaintiff as Khatedar of property in dispute. Counsel for the appellant has further submitted that the trial court has not considered the fact that the land in question is the different property which Smt. Shyama Devi has donated to Bal Kalyan Samiti in the year 1983. 6 13. In view of the aforesaid, I deem it a fit case to remand to the trial court. The trial court shall take into consideration the copy of khatauni i.e. paper no. 10 Ga. The trial court shall further appoint an Advocate Commissioner in order to ascertain as to whether the land in question is different to that land which has been donated to the Bal Kalyan Samiti by Smt. Shyama Devi. Thereafter, the trial court shall pass an appropriate order in accordance with law. 14. In view of the aforesaid, the judgment and decree passed by the trial court is sent aside. 15. Subject to the aforesaid, appeal is allowed and remanded to the trial court for deciding afresh in the light of the observations made above. No order as to costs. (Rajesh Tandon, J.) 10.6.2008 Avneet