- (1.) HEARD learned counsel for the plaintiff-appellant.
(2.) THIS second appeal under Section 100 CPC has been filed by the plaintiff-appellant against the judgment and decree dated 13th September, 2011 passed by Additional District Judge (Fast Track) in regular appeal no.301/2009 (21/2007) whereby the appeal filed by the plaintiff appellant has been dismissed and the judgment and decree passed by Civil Judge (Jr.Div.), Bonli dated 12th January, 2007 dismissing civil suit no.16/2001 filed by the plaintiff appellant for permanent injunction, declaration and for setting aside the resolution dated 30th September, 1991 passed by the Gram Panchayat, Bonli has been upheld. Briefly, stated the facts of the case are that the plaintiff appellant filed a civil suit for permanent injunction, declaration and for setting aside the resolution dated 30th September, 1991 passed by Gram Panchayat, Bonli with the averments that Late Ram Karan was the father of plaintiff and defendants Satya Narayan and Rajendra was having possession over the Bara situated at Niwai Road, Bonli. After the death of Ram Karan the plaintiff is having 1/3 share and the defendants Satyanarayan and Rajendra are having 2/3 share but the same was not divided and their possession over the said Bara is joint possession and stone boundary has been constructed over the same. It was further averred that on 31st March, 1990 defendant Smt. Badam Devi filed an application before the Gram Panchayat for allotment of the said land showing the same as ancestral land whereon the resolution dated 30th September, 1991 was passed in her favour consequently patta no.127 dated 21st April, 1992 was issued in her favour after receiving Nazrana. The plaintiff came to know about the said Patta on 27th March, 2001 when defendants started construction. Thus, it was prayed that the suit be decreed in terms of the prayers made therein. Against defendant-respondents 1 and 3 i.e. the Gram Panchayat, Bonli and Rajendra Kumar the trial court proceeded ex parte. The defendant respondent nos.2 and 4 Satyanarayan and Smt. Badam Devi who are husband and wife filed their written statement stating therein that the Bara in dispute was not ancestral property but the same was in their possession and Late Shri Ram Karan being pleased with the services rendered by Smt. Badam Devi, his daughter-in-law, gave the said Bara to her. Thereafter, Badam Devi filed application before the Gram Panchayat, Bonli, on which, proceedings were held in accordance with law and patta no.127 dated 21st April, 1992 was issued in her favour. It was then submitted that against the said resolution of the Gram Panchayat as well as the patta issued to Smt. Badam Devi one Ram Gopal filed a revision petition before the Additional Collector, Sawai Madhopur which was dismissed and decided in favour of Smt. Badam Devi. It was then averred that the plaintiff was having knowledge regarding issuance of patta dated 21st April, 1992 from the very beginning as the son of the plaintiff obtained a copy of the said patta. Thus, it was submitted that the suit is barred by limitation and deserves to be dismissed. On the basis of the pleadings of the parties, the trial court framed the following issues:- ...[VERNACULAR TEXT OMMITED]...
(3.) TO prove his case, the plaintiff appellant appeared himself as PW.1 and also examined PW.2 Sita Ram, PW.3 Sita Ram son of Kajod and PW.4 Ram Niwas. In documentary evidence Ex.1 to Ex.21 were got exhibited. In defence, the defendants examined DW.1 Satyanarayan, DW.2 Smt. Badam Devi, DW.3 Fellu and DW.4 Kamlesh. In documentary evidence the defendants got exhibited Ex.A.1 to Ex.A.16. The trial court after hearing both the parties and after consideration of the evidence of the parties decided issues no.1,2,6 and 7 against the plaintiff-appellant and in favour of defendant respondents 2 and 4 and decided issue nos.3 and 4 in favour of the plaintiff appellant and against the defendant respondents and consequently dismissed the suit of the plaintiff appellant vide impugned judgment and decree dated 12th January, 2001. Against the said judgment and decree of the trial court, the plaintiff-appellant filed regular civil appeal before the District Judge, Sawai Madhopur which was transferred to the court of Additional District Judge (Fast Track) District Sawai Madhopur and the same was also dismissed by the first appellate court vide its judgment and decree dated 13th September, 2011 upholding the aforesaid findings on each issue recorded by the trial court as the result of which the civil suit was dismissed as barred by limitation as well as on merits. Hence, this second appeal. Submission of the counsel for the plaintiff appellant is that both the courts below have committed serious error of facts and law in holding that the Bara in dispute was in exclusive possession of defendant no.4 Smt. Badam Devi, therefore, upholding of resolution of the Gram Panchayat, Bonli dated 30th March, 1991 and consequently, the patta dated 21st April, 1992 on the basis of possession of defendant no.4 Smt. Badam Devi, is contrary to the evidence on record as well as law. Therefore, the finding on issue no.1 is perverse and illegal. ;