Ashok Kumar vs Ram Asra and Others

N.K. Kapoor, J.—This is un-successful plaintiff''s regular second appeal.

Plaintiff filed a suit for possession of plot bearing No. 16-B measuring 200 sq. yds. per details given in the head-note of the plaint situated within the municipal limits of Yamunanagar. Basis of the claim of the plaintiff is the registered sale deed dated 4.10.1977 executed by Ashok Kumar, the erstwhile owner in his favour. According to the plaintiff it is in the year 1981 when he went on the site alongwith few labourers for digging the foundation that he was resisted by defendants 1 to 4 and so in the first instance filed a suit for injunction restraining defendants 1 to 4 and others as well as prayed for interim injunction, which was granted by the Court. It so happened that defendants despite the stay order forcibly occupied the suit land and so the suit was withdrawn with a liberty to file afresh.

Defendants have contested the suit. As per version of defendant No. 1 he has purchased plot No.15 measuring 16''x20'' vide agreement dated 12.3.1979 from defendant No.5 of which sale deed has also been registered on 26.6.1978. Similarly, defendant No.2 became owner of the property in his occupation on the basis of sale deed dated 26.6.1978. According to the defendants plaintiff was never in possession of the disputed land and so the question of dispossessing him forcibly does not arise at all. Defendants made further averments to the effect that in the absence of clear description of the property i.e. boundary as well as the area alleged to have been encroached upon by the defendants suit of the plaintiff cannot be decreed. Defendant No.3 similarly laid his claim on the basis of sale deed dated 26.11.1980. Vide this sale deed he is stated to have purchased a plot bearing No.15-B. However, all the defendants have stated that they have never encroached upon any part of plot bearing N0.16-B.

On the pleadings of the parties a number of issues were framed but primarily the contest revolved around issue No.1, which reads as:-

"I, Whether the plaintiff is owner of the plot in dispute and entitled to the possession thereof? By removing temporary tent as alleged? OPP."

The trial Court despite having come to the conclusion that plaintiff is owner of plot No. 16-B yet dismissed the suit for the reason as the plaintiff failed to establish its identity, i.e. how much area under whom is in occupation. Consequently suit of the plaintiff was dismissed.

The lower appellate Court too after perusing the evidence led by parties came to the conclusion that whereas plaintiff is proved to have purchased an area measuring 200 Sq. Yds. from Ashok Kumar-defendant No.5 on 4.10.1977 yet failed to prove the identity of this plot. The operative part of the judgment of the lower appellate Court reads as:-

"No pucca point so as to infer commencement of the plot in dispute of the plaintiff is proved, so as to give him a decree regarding the property commencing from that point towards eastern side to the extent of 20 feet. The entire evidence led by the plaintiff is hotch-potch and carries no where. So the plaintiff is not proved owner of the suit property when the very existence of the plot No. 16-B at the spot is not proved beyond shadow of reasonable doubt. Thus, the findings recorded by 1d. Sub Judge on issue Nos. 1 and 2, is reaffirmed as correct."

Ashok Kumar-defendant No.5 was owner of a big chunk of land. Vide various sale deeds, reference to which has been made by the Courts below, the plaintiff as well as defendants have purchased the area as mentioned in these sale deeds. As per evidence on record plaintiff purchased an area measuring 200 Sq.Yds. from Ashok Kumar-vendor vide sale deed dated 4.10.1977. Similarly, other defendants too have purchased land as given in these sale deeds in the years 1977, 1978 and thereafter. The precise dispute relates to the identity of the property purchased by the plaintiff. Evidence led by the parties is somewhat overlapping and at time contradictory. The report of the Local Commissioner, Exhibit PW3/C, too has not been relied upon by the lower appellate Court but without assigning any reason. ''Case indeed has peculiar features. Plaintiff as well as the defendants have purchased various parcels of land from one Ashok Kumar. All that it requires is to establish the identity of plots purchased by the parties. Report of the Local Commissioner has not been found to be helpful. This being so, the Court in the facts and circumstances of the present case ought to have ordered for appointment of another Local Commissioner or referred the matter to a revenue officer for demarcation of the property and thereafter examined the oral evidence led by the parties. Plaintiff has been able to prove ownership over an area measuring 200 Sq. Yds. as per sale deed duly executed by Ashok Kumar in his favour but has failed to establish its identity. Courts below have failed to examine the matter in its right perspective leading to the dismissal of the suit despite the plaintiff''s having proved its ownership. Judgments of the Courts below are liable to be reversed on this ground alone. Otherwise too, I am of the view that in case the Court was of the view that the report of the Local Commissioner is in my manner deficient, it ought to have appointed another Local Commissioner or referred the matter to a revenue officer for demarcation of the plots as per provisions of the High Court Rules and Orders. Such a course would have given the exact position as regards the location of plot N0.16-B as well as the encroachment, if any made by the defendants or anybody else. Accordingly, I accept the appeal, set aside the judgments and decrees of the Courts below and remand the case to the trial Court for a fresh decision. The trial Court of course shall afford opportunity to each one of the parties regarding the location of the plot/plots, purchased by them and their respective boundaries.

Parties to appear before the trial Court on 19.8.1996.