Point of Law: Interference with concurrent findings of courts below must be avoided under Section 100 CPC unless warranted by compelling reasons.

JUDGMENT :

Jyotsna Rewal Dua, J.

Suit for declaration and injunction filed by the appellants, husband and wife respectively, has been dismissed by both the learned Courts below giving cause of action to them to institute the present Regular Second Appeal.

2. Facts

2 (i) Parties are related to each other in the following manner :

2 (ii) The appellants instituted Civil Suit averring therein that S/Shri Mahantu and Sh. Solia (predecessor of the parties) were owners in possession of the land situated in 04 ‘Tikkas’. On 03.02.1958, these two persons entered into a family partition(agreement) Ex.PW2/A. In the said agreement, land comprised in one ‘Tikka’ (“Tikka Khangru”) was allotted to Shri Mahantu, whereas the land comprised in other three ‘Tikkas’ came to the share of Sh. Solia. The partition was given effect to and Shri Mahantu took possession of the land comprised in ‘Tikka Khangru’, whereas Sh. Solia took possession of the land comprised in other three ‘Tikkas’. Ever since the parties are enjoying their separate possession over the above ‘Tikkas’. With the grievance that the defendants had started interfering with the peaceful possession of the plaintiffs in the suit land, situated in ‘Tikka Khangru’, Civil Suit for declaration and injunction was filed by the grand daughter of Sh. Mahantu and her husband.

2 (iii) The defendants denied the existence of family partition (agreement) dated 03.02.1958. They pleaded that the aforesaid document put forth by the plaintiffs was fraudulent and not binding upon the defendants rights. That as per the revenue record the parties are joint owners in possession of the suit land. The suit land had never been partitioned between the parties.

2 (iv) On going through the pleadings and evidence, the learned Trial Court returned the findings that the revenue record depicted joint ownership and possession of the parties over the suit land. The plaintiffs had themselves admitted these entries to be correct. Even Khasra Girdawari (Ex.D8) showed that the disputed land was jointly owned and possessed by the parties. In respect of alleged family partition (agreement), learned Trial Court concluded that the same was not a registered document and also the signatures of Shri Mahantu did not appear on this document. Hence, no reliance whatsoever could be placed on this document by the plaintiff. For the aforesaid reasons, the suit instituted by the plaintiffs (appellants herein) was dismissed on 27.11.1999.

2 (v) The first appeal preferred by the plaintiffs against the aforesaid judgment and decree also met the same fate. It was dismissed on 21.11.2007.

3. This Regular Second Appeal was admitted on 29.4.2009, on the following substantial question of law :

“Whether the Ex.PX, order of the learned Divisional Commissioner, Mandi, Ex.PW1/A, order of Tehsildar, Ex.PW1/B, order of the Consolidation Officer andEx.XPW1/D, order of the Settlement Officer, whereby the suit land has been held to be in the separate possession of the appellants by virtue of agreement of partition between the parties, have wrongly been ignored by the learned Courts below, resulting into erroneous decisions”?

4. I have heard learned counsel for the parties on the above substantial question of law and also considered the relevant record of the case carefully.

4 (i) The main plank of the suit instituted by the plaintiffs was the family partition deed (agreement) Ex.PW2/A allegedly executed between their predecessor Sh. Mahantu (plaintiff’s predecessor) and Sh. Solia (defendant’s predecessor) whereby the suit land was statedly partitioned between them. According to the plaintiffs, pursuant to this agreement, Sh. Mahantu came in possession of the suit land comprised in ‘Tikka Khangru’ and Sh. Solia