- (1.) HEARD learned counsel for the plaintiff appellant.
(2.) THIS is the second appeal under Section 100 CPC filed by the plaintiff appellant against the judgment and decree dated 24th November, 2011 passed by Civil Judge (Jr.Div.), Khandar District Sawai Madhopur in civil suit no.146/1996 wherein the civil suit filed by the plaintiff appellant for setting aside the sale document dated 19th August, 1994 in favour of defendant no.1 Rakhlal in respect of the disputed land measuring 32x40 feet, declaration, permanent injunction and for specific performance has been dismissed and the counter claim of the defendant-respondents has been allowed which has been up held by the Additional District Judge (Fast Track), Sawai Madhopur vide judgment and decree dated 4th August, 2011 passed in Civil Appeal No.268/09 (69/2001). Briefly, stated the facts of the case are that the plaintiff appellant filed a civil suit for declaring the sale document dated 19th August, 1994 with regard to the land measuring 32x40 feet comprising of Khasra No.614/1 situated in revenue village Behranvda Khurd, Tehsil Khandar, District Sawai Madhopur, as null and void and for permanent injunction directing the defendants not to interfere with the Bara owned and possessed by her and for specific performance of agreement dated 4th November, 1993 with the averments that the said land was divided by her father in three shares amongst three sisters. Plaintiff and defendant no.2 are the real sisters and that the disputed land is in the ownership and possession of the plaintiff . However, her sister Nati, defendant respondent no.2 sold out the same to Rakhlal, defendant respondent no.1 for which she has no legal authority. The defendant-respondents in their written statement not only disputed the averments made in the plaint but also filed counter claim with regard to the disputed Bara and prayed for removal of possession of the plaintiff appellant from the disputed Bara and for handing over possession of the same to defendant respondent no.1. On the basis of the pleadings of the parties, the trial court framed the following 11 issues:- ...[VERNACULAR TEXT OMMITED]... The burden of proving Issues no. 1 to 6 was placed on the plaintiff appellant whereas the burden of proving issues no. 7 to 10 was placed on the defendant-respondents. Issues nos. 8,9 and 10 are with regard to the counter claim of the defendant respondents and issue no.11 was related to the relief. To prove her case, the plaintiff appellant appeared herself as PW.1 and also examined PW.2 Ram Kishan and PW.3 Ram Charan. In documentary evidence Ex.1 stamp was got exhibited.
(3.) IN defence the defendants examined DW.1 Rakhlal, DW.2 Saligram, DW.3 Ram Bharos and DW.4 Nati. IN documentary evidence the defendants got exhibited Ex.D.1 Jamabandi, Ex.D.2 Khasra Girdawari, Ex.D.3 Gift Deed, Ex.D.4 Gift Deed in favour of Nati, Ex.D.5 Gift Deed, Ex.D.6 copy of charge-sheet, PS Khandar, Ex.D.7 site plan, Ex.D.8 Order sheet dated 13.6.95, Ex.D.9 Xerox copy of complaint, Ex.D.10 certified copy of the plaint filed in the court of ACM, Ex.D.11 Photo copy of the order-sheet of case No.51/95 filed in the court of ACM, Sawai Madhopur and Ex.D.12 certified copy of plaint. The trial court after hearing both the parties and after consideration of the evidence decided issues no.1 to 6 against the plaintiff appellant and issues no.7 to 10 in favour of the defendant respondents and ultimately dismissed the civil suit filed by the plaintiff-appellant vide judgment and decree dated 24.11.2001 and while doing so, the trial court allowed the claim of the defendant-respondents and by specific order directed the plaintiff appellant to remove her possession over the Bara in dispute and hand it over to defendant Rakhlal. Against the said judgment and decree of the trial court, the plaintiff appellant filed regular civil appeal before the first appellate court which was also dismissed by the first appellate court vide its judgment and decree dated 4th August, 2011. Hence, this second appeal. Submission of the counsel for the plaintiff appellant is that the finding of the courts below on all the issues is perverse and the trial court has committed illegality in holding that the defendant respondents raised construction of the Bara. Counsel further submits that the finding on the aforesaid issues also suffers from infirmity of misreading of evidence. Before proceeding further it would be relevant to reproduce the discussion of the appellate court on issues 3,5,6 and 8 which are as follows:- Issues nos.3&5:- ...[VERNACULAR TEXT OMMITED]... ;