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Smt. Banti Devi And Ors. vs Munshi Ram on 29 January, 2018

2. The facts leading to filing of this appeal briefly stated are that the father of
appellant No.1 and the respondent herein namely Late Sh. Sham Lal
Thakur, since deceased, was originally a resident of Village Joshaana-
Saroor Teshil & District Kishtwar, where he had a dwelling house and

C.2.A. No.35/2013 Page 1 of 17
ancestral landed properties and he had four sons namely Mohan Lal, Munshi
Ram, Prehlad Bhagat and Ram Krishan. Besides the ancestral
immovable/movable properties including the residential house building
situated at Village Joshaana-Saroor belonging to the late father of the
appellant No.1 and the respondent herein namely Sh. Sham Lal Thakur, the
deceased father had also self acquired various lands at Kishtwar including a
piece of land comprising of Khasra No.522 situated at Village Hidyal-
Kishtwar wherein he had also constructed a residential house building with
vacant land. It is further contended that in the year 1968, the deceased father
of the appellant and the grandfather of appellant Nos.2 to 4 (sons of the
appellant herein) during his life time orally partitioned his entire landed
properties situated at Kishtwar as well as at Joshaana Saroor and adjoining
places amongst his all the four sons in the ration of 1/4 th share each, who are
since then in possession, use and occupation of their respective shares.
However, insofar as the two residential houses, one situated at Hidyal-
Kishtwar and the other one situated at village Joshaana-Saroor (Kishtwar)
were concerned, the same fell into the exclusive shares of appellant No.1
and the respondent herein. Insofar as other two sons, namely Prahlad Bhagat
and Ram Krishan, were concerned, they were given one plot each in the
land comprising of Khasra no.522 at village Hidyal-Kishtwar i.e., adjacent
to the aforesaid residential house of the appellant, who subsequent to the
said oral partition effected in the year 1968, themselves constructed their
own houses over the said plots and are residing therein since then. It is
reiterated here that all the four brothers got equal shares of 1/4 th each in all
the lands situated at both places i.e village Joshaana-Saroor as well as at
Hidyal-Kishtwar excepting the two residential houses, as stated hereinabove
and they are duly reflected as owners of 1/4th shares in the landed properties
in the revenue records. It is further contended that right from the year 1968
all the four brothers including the appellant No.1 as also the respondent
including the other two brothers are in the use and enjoyment of their

C.2.A. No.35/2013 Page 2 of 17
respective 1/4th shares in the land situated at Kishtwar as also at Joshaana
Saroor, whereas the appellant is in exclusive possession of the residential
house at Hidyal-Kishtwar as owner thereof and the respondent is in
possession of the residential house at village Joshaana-Saroor as owner
thereof. It is further contended that in the year 1989 the State Government
(in the Fisheries Department) acquired 02 kanals and 03marlas of land out
of khasra No.96 measuring 04 kanals and 18 marlas, situated at Kishtwar,
which land had fallen in the share of the appellant No.1 and who was in
occupation and cultivating possession thereof. A compensation of
Rs.40,000/- was granted therefor which became the subject matter of
dispute between the respondent and other two brothers, namely, Prahlad
Bhagat and Ram Krishan on one side and the appellant on the other side
which lasted up to this Court. In this backdrop, the respondent herein started
nourishing ill-will against the appellant and with the active connivance of
the other two brothers and he came to Hidyal-Kishtwar in the month of
September, 1992 and by committing the criminal trespass he forcibly
occupied one room and one bath room of the appellant’s house at Hidyal-
Kishtwar. Appellant filed a criminal complaint against the respondent in the
Court of learned Judicial Magistrate at Kishtwar against the respondent
titled Mohan Lal vs Munshi Ram & ors for offences u/Ss 447, 427,323
RPC. In order to counter blast the case of the appellant, the respondent
herein on 21.09.1994 filed a civil suit titled Munshi Ram vs Mohan Lal and
others against the appellants herein which was transferred to the Court of
learned Sub-Judge Kishtwar on 01.10.1994 for grant of decree for
permanent prohibitory injunction thereby restraining the defendants from
demolishing the room No.6 and further restraining them from interfering
into his purported possession over room nos.2,3 & 6 and
courtyard/compound (sehan) and also from raising any construction thereon.
On motion of the respondent (plaintiff) the trial Court appointed Sh.
R.K.Goswami Advocate as a Commissioner on 23.09.1994 for conducting

C.2.A. No.35/2013 Page 3 of 17
the spot inspection and submitting the status report. The Commissioner so
appointed while exceeding his brief proceeded to the spot on 24.09.1994
and also record the evidence of the witnesses without administering any
oath and submitted his report on 05.12.1994 along with the site plan
showing therein that the respondent/plaintiff was in possession of one room
kitchen; one room; one cattle room and also showed the alleged room in
dispute as Pooja Room. Strangely, the commissioner in his aforesaid report
also disclosed that as per the oral statements of the witnesses “that partition
has taken place and Munshi Ram (respondent/plaintiff) is in peaceful
possession/occupation (should read as “possession”) of his share. The
dispute if at all is there it is upon the Pooja Ram actually falls in the share of
Munshi Ram and Mohan Lal forcibly occupied besides.” It is further stated
that Munshi Ram in his statement dated 23.09.1994 never deposed before
the Commissioner that he had been dispossessed. The dispute was with
regard to the said house only as the respondent (defendant No.1) claims that
the same has as a whole fallen into his share only whereas this house was
partitioned in the presence of the witnesses and by virtue of the partition
deed portion of house comprising of one cattle room and three rooms had
fallen in his share. On the contrary the consistent stand of the applicant No.1
in his statement before the Commissioner, his two written statements filed
in the suit; his statement recorded as his own witness, memorandum of
appeal filed before the 1st appellate Authority and even the present Memo of
Civil Second Appeal, has been that all the landed properties both at
Joshaana-Saroor and Kishtwar as well as the two residential house were
orally partitioned by the deceased father namely Sh. Sham Lal Thakur way
back in the year 1968 whereby the lands were divided into 1/4th share each
whereas the house at Hidyal-Kishtwar had fallen into the share of the
appellant No.1 exclusively whereas the house at Joshaana Kishtwar had
fallen into the share of respondent Munshi Ram exclusively whereas two
separate plots in land at Kishtwar falling under khasra No.522 were given to

C.2.A. No.35/2013 Page 4 of 17
the remaining two brothers for constructing their residential houses. The
respondent/plaintiff based his suit on the plea raised in para 1 of the plaint
that as per the site plan enclosed with the plaint he is the owner in exclusive
possession of room nos.2,3,6 and the compound of the house being part of
the house building of the appellant No.1 who is his elder brother, situated at
Hidyal Kishtwar and the defendants had started demolishing and raising
construction over room no.6. Appellants (defendants) filed their first written
statement on 10.10.1995 thereby resisting the suit of the respondent and
reiterating the stand that the properties had been partitioned by their late
father in the year 1968 and the house at Hidyal-Kishtwar had fallen into the
share of appellant no.1 exclusively, which is based on truth and the fact.
However, before the issues could be framed the respondent/plaintiff filed an
application for seeking to amend the said suit on the basis of the false report
and the site plan he had managed to obtain and get filed through the
Commissioner to the effect that the appellant no.1 had dispossessed him
from room no.6 and forcibly taken over the possession, which he has
admitted in his statement. The application for amendment of the plaint was
allowed vide order dated 24.07.1997. The trial Court entertained the
amended plaint and written statement being the second one was filed by the
appellants/defendants 19.11.1997 reiterating the same plea of the actual
partition having been effected orally by their late father in the year 1968
besides objecting to the legality and acceptance of the report of the
Commissioner as also resisting the maintainability of the suit of the plaintiff
on a variety of grounds. However, it is submitted that the objection raised
with regard to the report of the Commissioner was never addressed to
decide by both the courts below rather the same has been acted upon and
relied upon as a piece of evidence notwithstanding the settle position of law
that the Commissioner cannot be appointed for creating evidence for either
of the parties.

Source: IK



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Smt. Banti Devi And Ors. vs Munshi Ram on 29 January, 2018

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