Rajive Bhalla, J. - (1.) Ram Avtar, the appellant, (since deceased), challenges judgment and decree dated 15.12.1987, passed by the Additional District Judge, Narnaul, allowing the appeal filed by the respondents and as a consequence setting aside judgment and decree dated 16.09.1986, passed by the Sub Judge Ist Class, Narnaul, decreeing his suit for possession.
(2.) Counsel for the appellant submits that the trial court decreed the suit for possession but the first appellate Court, has reversed the judgment and though it has accepted the ownership of the appellant and his brother with respect to portion EFGH (rented out to Sheo Lal), which was a part of the Haveli, but dismissed the suit by ignoring relevant evidence and recording findings that are contradictory and perverse. The first appellate court has failed to take into consideration that portion EFGH, is a part of the Haveli and was rented out, before and during the 1950's to the respondents predecessors. The first appellate court has also ignored that between the 1950's and the filing of the suit, boundaries have changed as the respondents raised construction on vacant land without the consent or knowledge of the appellant. The first appellate court also ignored that ancestors of all the respondents were tenants under the appellant and his brother, duly proved by rent notes, which when read with judgment Ex.P-3, dated 24.03.1954, prove that Sheo Lal, was in possession of a part of the Haveli, consisting of a courtyard, a compound and a well. The judgment, Ex.P3 reveals that a suit filed by the appellant for eviction of Sheo Lal, on the grounds of non-payment of rent and personal necessity, was decreed. An execution petition was filed to enforce this decree. The Nazir made a report, Ex.P-8, dated 04.08.1954, recording delivery of possession. The execution petition was disposed of by order dated 16. 09.1986, on the ground that possession has been delivered to the decree holder (the appellant). The first appellate court has discarded this evidence, including the report, dated 04.08.1954, Ex.P8, recording delivery of possession, by relying upon the deposition by Kailash Chand, the Nazir, that possession was not delivered. The first appellate court was bound by the order passed, in execution, and could not discard the order or the report, recording delivery of possession on the basis of oral evidence of the Nazir that possession was not delivered. The report was prepared in the discharge of official duties and, therefore, could not be discarded by reference to oral evidence, even by the person, who authored the report.
(3.) Counsel for the appellant further submits that the findings that even if possession was delivered it cannot be held that possession of Sheo Lal's sons is permissive and the finding that the appellant has failed to prove that he ever came into possession of any part of the building are incorrect and contrary to the record. The portion EFGH is admittedly a part of the Haveli, and was let out to Sheo Lal. The eviction order was passed against Sheo Lal, with respect to this very portion, on the grounds of non-payment of rent and personal necessity. The order was executed in accordance with law and possession was delivered. The boundaries described in the rent notes etc. prove that the Haveli consisted of a constructed portion, a courtyard, a compound and a well. Sheo Lal, his sons and the other respondents encroached upon the property, got sale deeds executed from a fictitious person and raised construction, thereby altering the boundaries. The sale deeds have been rejected by both courts and the respondents, who relied upon these sale deeds, have not filed an appeal. The respondents are unable to adduce any evidence to support any right or title whether possessory or proprietary in the disputed premises. Counsel for the appellant also submits that findings that the appellant has only been able to prove the letting out of portion EFGH and eviction therefrom is based upon a misreading of the evidence. The respondents are legal heirs of Richpal, Sheo Lal and Bakhtawar Singh, who are brothers and son of Dena @ Devi Dayal and the others offspring of Tula Ram or Umda, who were, at one time, the appellant's and his brother Om Parkash's tenants but encroached upon the premises and raised constructions. The impugned findings are, therefore, not only perverse but contrary to the record and may, therefore, be set aside.;