- (1.) IN support of the two review petitions against the common judgment, Mr. Rajiv Dutta, Senior Advocate has submitted that the finding in paragraph 20 of the judgment that there was no order of the SDM for measurement is erroneous and has relied upon ex. EWA/1 to submit that there was such an order by the SDM. We have perused the aforesaid document sought to be relied upon and find no such order by the SDM to the DW1 Patwari Manjit Singh to make measurements. Even if it was presumed that the Tehsildar had made measurements pursuant to an order of the SDM, the following finding of ours deal with the testimony of the Patwari manjeet Singh: "20. The argument of the appellant that the property has been demarcated by the Patwari, Manjit Singh DW-1, in order to show that the suit property falls in Khasra No. 93/3 is not supported by the deposition of Majit Singh. The witness has also admitted that he does not know in which musavi and khasra number the fixed points of the nishandehi were fixed. He has further stated in his deposition that after the consolidation in 1975-76, musavi was deposited and without the musavi, no measurements could have been made. Further there was no order of the SDM for measurements without which no official measurement could be made. " Thus, no reliance could have been placed upon the testimony of the patwari Manjit Singh even if it was assumed that the demarcation was ordered by the SDM.
(2.) MR. Sethi, the learned Senior Counsel for the appellant in RFA no. 104/2006 submitted that whether or not the appellant had been able to establish that the properties are situated in khasra No. 93/3/1, the plaintiff/respondent has not been able to show that the properties fell within khasra no. 93/3/1 as claimed by the plaintiff and the plaintiff had to fail. In our view, the learned Additional District Judge had recorded findings that the properties in dispute fell within khasra no. 93/3/1 in paragraph 33 after an elaborate discussion of the evidence in the following terms: "33. To sum up I hold that the suit property falls in khasra No. 93/9/1 as claimed by the plaintiff. Resultantly the defendants has no right over the same and their possession is unauthorized and illegal. The plaintiffs are entitled to decree for possession. The issue is decided in favour of the plaintiffs and against the defendants. " The said findings have been affirmed by us and accordingly, this issue cannot be reopened in review. It was also found that the original owner of the property Gurdeep Kaur who is said to have sold the suit property to the appellant had filed a suit claiming that she had purchased the property bearing khasra No. 93/3 from the original owner Vijay Singh who denied such a sale. This suit by Gurdip Kaur was dismissed and the said decision had become final. Thus, Gurdip Kaur herself had not been able to establish her title could not have transferred any valid title to the appellant.
(3.) MR. Sethi further submitted that the application for demarcation had been filed before the trial court and that had not been dealt with. This plea was never urged before us during the hearing of the appeal and was sought to be raised by filing an application to that effect on 24th March 2008 after the judgment was reserved on 13th March 2008. The application seeking demarcation was dismissed on 26th May 2008 by a speaking order. Thus, the plea for a re-demarcation which was dismissed on 26th May 2008 is now sought to be resurrected by the present review petition. Furthermore, the demarcation which was sought had already been done by the DW1 Patwari Manjit Singh whose evidence stood discredited by the following elaborate findings of the learned Additional sessions Judge affirmed by us in appeal. "14. On the other hand defendant examined four witnesses. DW-1 Manjit singh Patwari proved Nishandehi report as Ex. DW-1/a. In cross examination he stated that name of Bua Singh) defendant No. 2 of Suit No. 197/02) is not entered in Revenue Record. He admitted that officially measurements are done only in respect of the persons whose names are entered in revenue record. In response to court question as to why he took measurement at the request of Bua Singh when name of Bua Singh was not entered in revenue record he replied that measurement was taken at the request of Bua Singh as Bua Singh told that dispute was going on in court. He did not know in which musavi or khasra number the fixed points for Nishandehi was located. He did not know if notice was given or not to the owner of adjoining khasra number but the same was not necessary. He did not know through which khasra number 44 ft. wide road passes and through which khasra number 20 ft. wide road passes. No ploted sizra was prepared as the same was to be prepared by Coloniser and not by Revenue authority. On the date of measurement in question, the sizra was lying deposited in some court. Measurement is done on the basis of musavi. Musavi was available with girdawar. After consolidation musavi is deposited in the office of Sadar Kanoongo and tehsil. In the village in question the consolidation took place in 1975-76. In response to court question how the musavi was with Girdawar after consolidation in 1975-76 he stated that Girdawar brought the same from office. Only portion of musavi and that too photo copy was brought by Girdawar. The whole musavi was not brought. He did not know how to read and write Urdu. He could not say if musavi was in Urdu as he did not see the same. He admitted that the measurement to find out rectangle and khasra number could not be done without musavi and sizra. He admitted that order of measurement can be passed by SDM only. He could not say if there was no order to take measurement on the basis of photo copy, from SDM and Tehsildar in the present case. ";