Kella @ Karnail Singh Vs. Gurnam Kaur and ors. - Court Judgment

Excerpt:
civil procedure code, 1908 - section 100--second appeal--appellant did not produced evidence before trial court to show that the plot in dispute was purchased by his father--trial court on scanning the pattas, found that the one produced by the plaintiff was genuine while the one produced by appellant was not genuine or of the plot in dispute--no interference is called for in second appeal. - - the main contention of learned counsel for the appellant is that the document which is exhibited prior to ex parte decree cannot be read if it is accepted later on after setting aside the ex parte decree, therefore, the finding of the learned trial court as well as appellate court is perverse and has no foundation to stand in the eye of law.gopal krishan vyas, j.1. in this second appeal, filed by defendant-appellant under section 100, c.p.c., the appellant is challenging the concurrent finding of fact arrived at both by addl. district judge (fast track) no. 1, hanumangarh vide judgment and decree dated 25.11.2008 passed in civil appeal no. 24/07 and civil judge (jr. dn.), pilibanga vide judgment and decree dated 24.10.2005 passed in civil original suit no. 9/02, whereby, the learned appellate court upheld the judgment and decree passed in favour of respondent-plaintiff and it is ordered that the appellant (herein) shall hand over possession of the plot/house in question to the plaintiff-respondent.2. before the trial court, respondent-plaintiff filed suit for eviction and injunction on the basis of patta issued in his favour on 116.09.963 by the gram panchayat, amarpura rathan, measuring 68 ft x 100 ft. it is submitted by the plaintiff before the trial court that he is owning patta which is issued in his favour and upon that he is entitled for decree of eviction and injunction against the defendant-appellant.3. the trial court initially decreed the suit ex parte; but, later on, the said court allowed application filed under order 9 rule 13, c.p.c. and set aside the ex parte decree and proceeded to decide the suit afresh. the order for setting aside the ex-parte decree was passed by the trial court on 29.04.2004. thereafter, learned trial court framed issues on 17.09.2004 and opportunity to lead evidence was given to both the parties. learned trial court decided all the issues in favour of the respondent-plaintiff and gave a clear finding that the plaintiff is having valid patta in his favour, therefore, he is entitled for possession of the plot in question and passed decree for eviction against the appellant-defendant. the said judgment was rendered by the trial court on 24.10.2005 against which first appeal was preferred by the present appellant before the district judge, hanumangarh which, later on, came to be transferred to the court of addl. district judge (fast track) no. 1, hanumangarh. learned addl. district judge (fast track) no. 1, hanumangarh dismissed the appeal which upholding the judgment and decree passed by the trial court. both these judgments are under challenge in this second appeal.4. learned counsel for the appellant contended that the trial court has wrongly recorded the finding that the plaintiff has proved the patta issued by the gram panchayat, amarpura rathan. the main contention of learned counsel for the appellant is that the document which is exhibited prior to ex parte decree cannot be read if it is accepted later on after setting aside the ex parte decree, therefore, the finding of the learned trial court as well as appellate court is perverse and has no foundation to stand in the eye of law.5. in my opinion, the contention of learned counsel for the appellant is not tenable. it is nowhere stated that patta upon which suit was filed is forged patta. in the written-statement it is specifically stated by the present appellant that his father purchased the said plot from one kapur singh for consideration of rs. 90/- and patta was earlier issued in favour of kapur singh in the year 1951, therefore, contention of the defendant is false. learned trial court while considering the oral evidence and the fact that appellant has not proved before the court by any documentary evidence that his father purchased the said plot from kapur singh. learned trial court thoroughly scanned the patta filed by the respondent-plaintiff and patta filed by the appellant before the court. after scanning, it is found that the patta filed by the plaintiff-respondent is genuine whereas the patta filed by the appellant is not genuine or of the land upon which the plaintiff is claiming his right.6. having thus considered the finding arrived at by the courts below, i do not find any error or illegality in the finding. therefore, no case is made out for interference in this second appeal under section 100, c.p.c.7. hence, this second appeal is dismissed.