IN THE COURT OF J.B.GUPTA,ADDITIONAL DISTRICT JUDGE, NUH: Civil appeal No. 108 of 2011 Date of Instt: 8.10.

2011 Date of Decision: 17.4.2012 Sakir alias Sabbir son of Sumer son of Nijru resident of village Bhajalka, Tehsil Tauru, District Mewat. Appeallant/plaintiff. Versus General Public Respondents/Defendant Civil appeal against the judgment & decree dated 13.9.2011 passed by Shri R.K.Dogra, Learned Civil Judge (Sr.Divn.)Nuh Present: Shri Abdul Karim, Advocate for appellant. Respondent already exparte.

JUDGMENT:1. This appeal is directed against the judgement and decree dated 13.09.2011 passed by Shri R.K.Dogra Learned Civil judge (Sr.Divn.) Nuh whereby the suit of the plaintiff has been dismissed with no order as to costs. 2. In brief , facts of the present case are that plaintiff Sakir @ Sabbir has filed the present suit for declaration against General Public on the allegations inter-alia that

plaintiff and his brothers Islam, Sabbir and Ibrahim are the owners in possession of the agricultural land bearing kewat/khatoni no.31/37 Rect.no.5 killa no.12(7-07), 19/1 (8-03), 22/2(3-13), 23/1(2-04), 100(1-0), total measuring 25 Kanals 07 marla situated within revenue estate of

village Bhajalaka tehsil Tauru, District Mewat. It is further pleaded that plaintiff are four brothers namely Sabbir, Islam, Sakir and Ibrahim. In the childhood the plaintiff was called by name Sabbir inadvertently in the revenue records in place of sakir. Sakir and Sabbir is the name of one person. The actual name of the plaintiff is Sakir but he also called by the name Sabbir in the village. The name of the plaintiff Sabbir as shown in the revenue record is wrong illegal ,null and void and liable to be correct as Sakir @ Sabbir in place of Sabbir. It is further pleaded that the plaintiff came to know about his wrong namely recently on 13.1.2011 when M/s Winsome

Breweries ltd./ Sare Khurd, Tehsil Tijara, District Alwar had served a notice to the plaintiff and an enquiry was conducted against him. The plaintiff was the employee of the aforesaid company. On these facts the present suit has been filed. The defendant General Public was summoned through

publication but none has appeared in the court to contest the case and therefore, the defendant General Public was proceeded against ex-parte.

4.

After accept

holding the

trial, of

the

learned

trial

court and

did

not

claim

the

plaintiff,

therefore,

dismissed the suit of the plaintiff with no order as to costs. Feeling aggrieved by the same , plaintiff has

filed this appeal. 5. Submissions made by the learned counsel for the parties, evidence and documents on the file have been appraised. 6. Learned counsel for the appellant has argued that

judgment and decree dated 13.09.2011 passed by learned lower court are absolutely wrong, illegal, null and void as the same is passed on surmises and conjuncture.

Learned counsel for appellant has further argued that appellant evidence has to produced that oral fact as that well as documentary name of the

prove

actual

plaintiff is Sakir but he is also known as Sabbir and therefore, the name of plaintiff should be recorded as Sakir @ Sabbir in the revenue records. But the evidence produced by the plaintiff was not appreciate by learned lower court. Learned counsel for appellant has, thus, argued that in these circumstances, the judgment and

decree dated 13.09.2011 passed by learned lower court is liable to be set aside and the name of plaintiff should be corrected in the revenue record as Sakir @ Sabbir. 7. I have perused the case file very carefully with the assistance of learned counsel for appellant.

8.

In the present case to prove the contents of plaint, plaintiff himself has appeared in the witness box as PW1 and has tendered his affidavit Ex.PW1/A wherein he has reiterated the entire version of the plaint. Plaintiff also examined PW2 Israil, Member Panchayat, PW3 Aarif son of Fazru and PW4 Islam son of Sumer. All the aforesaid three witnesses have tendered their respective affidative Ex.PW2/A, Ex.PW3/A and Ex.PW4/A and have corroborated the statement of the plaintiff. In the documentary evidence , the plaintiff also produced his affidavit Ex.P1 and copy of jamabandi Mark-A.

9.

In the jamabandi mark-A Islam, Musa, Sabbir , Ibrahim have been shown the son of Sumer. Learned counsel for appellant has also argued that the brother of the

plaintiff Sabbir has also filed another suit to get his name rectified in the revenue record and that suit was also dismissed by learned lower court and appeal filed by Sabbir is also pending today for arguments. Although the evidence of another civil suit Sabbir Vs. General Public cannot be taken into consideration while deciding the present appeal but Court can peruse the case file of the aforesaid suit to appreciate the evidence produced by appellant in the present case. In the another civil suit filed by brother of the plaintiff Sabbir, it has been claimed that his actual name is Sabbir but his name has been recorded in the revenue record as Musa and therefore

, the revenue record should be corrected as Sabbir @ Musa. In the present appeal it is the contention of the appellant that he is known as Sakir @ Sabbir. It is higly improbable that two real brothers have the same name. the present appellant is known as Sabbir whereas his real brother has claimed in another suit that his name is Sabbir @ Musa. The parents of the appellant have not appeared in the witness box to clarify these facts. The pleadings of the appellant is confusing and ambiguous. Rather it appears that appellant has concealed the

material evidence from the court. In para no.3 of the plaint, it is peaded by appellant that he came to know about his wrong name recently on 13.1.2011 when employer company of the plaintiff Winsome Berweries Ltd., Sare Khurd , Tehsil Tijara, District Alwar served a notice to the plaintiff and held the enquiry against him. The

documents regarding the aforesaid enquiry have not been produced by the appellant. To my mind, those documents were very much material to decide the present case. Why the appellant has filed the present suit to get his name rectified enquiry. in the revenue have records not after the aforesaid by the

These

facts

been

explained

appellant in his statement while appearing in the witness box or by the other witness examined by the appellant. All this shows that appellant has filed the present suit with some ulterior motive and has concealed the material evidence from the court. There is no illegality or

irregularity

in

the

judgment

passed

by

learned

lower

court. However, the findings of the learned lower court that present appellant has also filed another suit on the same footing for correction of his name is factually

wrong because the other suit was filed by the brother of the appellant , and the not appeal by appellant. by the With this is

modification

filed

appellant

hereby dismissed. No order as to costs. Decree sheet be prepared accordingly. The record of the trial court along with the copy of this judgment be sent to the concerned court and the record of appeal be consigned to the record room after due compliance. Announced in open court. Dated: 17.4.2012 Additional District Judge, Nuh Value of the appeal for the purpose of court fee and Jurisdiction Rs. 200 Court fee affixed Rs. 25 English Civil form No.124 (Order XLI Rule No.35 of the code of civil Procedure) In the court of Shri J.B.Gupta, Additional District

Judge, Nuh

Sakir alias Sabbir son of Sumer son of Nijru resident of village Bhajalka, Tehsil Tauru, District Mewat. Appeallant/plaintiff. Versus General Public Respondents/Defendant Date of presentation of plaint in the first court 18.1.2011 Date of decision in the first court 13.9.2011 Appeal from the judgment and decree of the court of Sh. R.K.Dogra civil Judge (Sr.Div)Nuh Appeal No.108 of 2011 Memorandum of Appeal Sabir @ Sabbir Appellant/Plaintiff Versus General Public Respondent/defataint The above named Sabbir @ sakir appeared to the additional District Judge, Nuh from the judgment and decree of shri R.K.Dgora Civil Judge (Sr.Div.) Nuh. This appeal coming on for hearing on 17th of april2012 before me (J.B.

Gupta,Additional district Judge, Nuh)

In

the

presence

of

Shri

Abdul

Karim

counsel

for

the

appelliant already shri improted counsel for respondent. It is ordered The costs of the appeal detailed below amounting to Rs. Are to be paid by the appellant. The cost of the original suit are to be paid as directed in the judgment of appeal. Give under my hand and the seal of this court, this date of 17th day of april 2012 Cost of Appeal Plaintiff(s) 1. Stamp for petition: 2. Stamp for power: 3. Stamp for Process: 4. Pleaders fee of Rs. 5. Misc 6. Other Expenses Total: 25.00 50.00 50.00 00.00 1020.00 00.00 1100.00 Defendant(s) -----------------00.00

(J.B.Gupta) Additional district Judge. Nuh 17.04.12