Arjun Singh vs Municipal Corporation

L.N. Mittal, J.—Arjun Singh plaintiff having remained unsuccessful in both the courts below has come up in the instant second appeal.

Plaintiff filed suit against respondent Municipal Corporation, Jalandhar alleging that the plaintiff is in peaceful possession of the suit land measuring 26 marlas out of 9 kanals 6 marlas land comprised in khasra No. 1580 as described by boundaries and as shown in the red colour in the site plan attached to the plaint. The plaintiff alleged that the suit property vests in Central Government. Plaintiff''s father Mangal Singh was in cultivating possession thereof. After death of Mangal Singh in the year 1991, the plaintiff being his son and legal heir is in possession of the suit property. The defendant alleged that the suit property vests in it and accordingly Regular Second Appeal No. 649 of 2010 -2 threatened to oust the plaintiff therefrom forcibly.

The defendant pleaded that the site plan annexed with the plaint does not give correct description of the suit property. It was alleged that the site in dispute is part of khasra No. 1579 and not of khasra No. 1580. It was also alleged that suit land along with other land was acquired for public purpose of Punjab Water Supply & Sewerage Board for construction of disposal work of water works vide notification dated 13.2.1981.

Learned Additional Civil Judge (Senior Division), Jalandhar vide judgment and decree dated 17.12.2008 dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 9.11.2009. Feeling aggrieved, the instant second appeal has been preferred by the plaintiff.

I have heard learned Counsel for the appellant and perused the case file.

The plaintiff has practically not led any evidence to depict that the suit land described by boundaries in the plaint and shown in red colour in the site plan annexed with the plaint is part of khasra No. 1580 claimed by the plaintiff. In view thereof, the plaintiff could not succeed.

Learned Counsel for the appellant contended that no issue was framed regarding identity or demarcation of the suit land and therefore, the plaintiff could not lead any evidence on this aspect. The contention, although apparently attractive, is completely devoid of substance. The plaintiff claimed himself to be in lawful possession of the suit property and to this effect issue No. 1 was framed. Under this issue plaintiff had to prove Regular Second Appeal No. 649 of 2010 -3 that the suit property is part of khasra No. 1580 as claimed by him. No separate issue was required for this purpose.

Learned Counsel for the appellant next contended that it was for the defendant to prove that suit property is not part of khasra No. 1580. The contention cannot be accepted because the defendant was not required to prove it by negative evidence. The plaintiff was required to prove by positive evidence that the suit property is part of khasra No. 1580 but no such evidence was led by the plaintiff. If no party leads evidence, obviously the plaintiff would fail and therefore, it cannot be said that the defendant had to prove that the suit property is not part of khasra No. 1580.

Learned Counsel for the appellant next contended that no demarcation of khasra No. 1579 was obtained by defendant in accordance with law and therefore, suit property cannot be said to be part of khasra No. 1579. Reliance in support of this contention has been placed on judgment of this Court in the case of Ram Murti Goyal, Advocate and Ors. v. Smt. Basant Kaur and Ors. 1991 (2) PLR 54. The contention cannot be accepted because even if the suit property is not proved to be part of khasra No. 1579 as claimed by the defendant, it would also not entitle the plaintiff to succeed without proving that the suit property is part of khasra No. 1580 and he is in possession thereof. However, the plaintiff has miserably failed to prove that suit property is part of khasra No. 1580 or that the plaintiff is in possession thereof. There is concurrent finding of fact against the plaintiff on proper appreciation of evidence. The said finding cannot be said to be perverse or illegal so as to warrant interference in the second appeal. No question of law much less substantial question of law arises for determination by this Court in the instant second appeal.

In view of the aforesaid, the appeal is without any merit and is accordingly dismissed in limine.