Balbir Ram and Another vs Lal Chand and Others

L.N. Mittal, J.—Defendants - Balbir Ram and his wife Avtar Kaur have filed the instant second appeal having remained unsuccessful in both the courts below.

Respondents Lal Chand etc. filed suit against the appellants for possession of disputed part of a bigger house situated in Village Lassara, Tehsil Phillaur. Respondents-plaintiffs alleged that their ancestor Chhajju Ram was owner in possession of the entire house and on his death, his two sons Achhru Ram (grandfather of plaintiff No. 1) and Dasaundhi Ram (predecessor-in-interest of plaintiffs No. 2 to 4 i.e. great grandfather of plaintiffs No. 2 and 3 and grandfather of plaintiff No. 4) became owners in possession of the house and presently plaintiffs are owners of the disputed house. About three years before the filing of the suit, disputed portion of the house was given by the plaintiffs to the defendants on license on their request as they had strained relations with Chain Ram (father of defendant No. 1). Defendants undertook to vacate the suit portion as and when required by the plaintiffs. In October 2001, the defendants, on demand of the plaintiffs, failed to vacate the suit portion. Consequently, plaintiffs filed suit for possession of the suit portion.

Defendant No. 1 was proceeded ex-parte in the trial court.

Defendant No. 2 contested the suit and denied the plaint allegations. It was pleaded that plaintiffs have no concern with the suit house and defendants have acquired the same from their forefathers and are residing there since long. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Phillaur, vide judgment and decree dated 06.12.2005, decreed the plaintiffs'' suit. First appeal preferred by defendants stands dismissed by learned Additional District Judge, Jalandhar, vide judgment and decree dated 23.07.2008. Feeling aggrieved, defendants have preferred the instant second appeal.

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

The plaintiffs, besides leading oral evidence, have also led documentary evidence, whereas the defendants have not led any documentary evidence. Only defendant No. 1, who was otherwise proceeded ex-parte in the trial court, stepped into the witness-box and defendants examined another witness Mohinder Pal (DW-2). Plaintiffs have proved Panchayati compromise Ex.P-1 dated 20.02.2002, executed by defendant No. 2 Avtar Kaur and her son Tota Ram with Lal Chand - plaintiff No. 1. According to this compromise, defendant No. 2 and her son undertook to vacate a room and kitchen (not part of the disputed portion, but part of the house), which they had forcibly occupied by breaking open the locks. This compromise establishes that plaintiffs are owners of the house, of which suit property is a part. By this compromise, defendant No. 2 and her son admitted ownership of the plaintiffs over the disputed house and thereby agreed to vacate the portion forcibly occupied by them. Learned Counsel for the appellants contended that this compromise was entered into after filing of the suit, but has not been got recorded in the Court nor it was pleaded in the replication nor this compromise refers to the pendency of the suit. This contention is devoid of substance because the compromise did not relate to the suit property and therefore, it could not be got recorded in court nor it was required to be pleaded in replication. On the other hand, defendant No. 2, who is the sole contestant and who is party to the compromise, did not dare to step into the witness-box, to deny the aforesaid compromise nor the defendants have examined their own son Tota Ram, who was also party to the compromise. Even defendant No. 1 did not deny the aforesaid compromise nor he stated that it does not relate to another part of the same house, of which suit property is also a part. This compromise is a vital piece of evidence in support of the case of the plaintiffs.

Defendants have alleged the suit property to be their ancestral property. However, defendants have not placed on record any document to depict that they have been residing in the suit property for more than three years preceding the filing of the suit, as alleged by the plaintiffs. The defendants have also not produced any documentary evidence to depict that their ancestors ever resided in the said property. If the suit property had been ancestral, the defendants could very well produce documentary evidence to depict that they have been residing in the suit property since long and not only since three years preceding the filing of the suit, as alleged by the plaintiffs. The defendants could also lead documentary evidence to depict that even their forefathers were residing in the suit property. However, the defendants have failed to lead any such evidence. Self-serving, bald and oral statement of defendant No. 1, supported by oral statement of another witness, is not sufficient to prove that suit property is ancestral property of defendant No. 1. On the other hand, defendant No. 1 admitted in the witness-box that his father is residing separately from him in a house located about 04 killas away from the disputed house. This materal circumstance would also depict that the suit property is not ancestral property of the defendants.

Learned Counsel for the appellants contended that even plaintiff No. 1, while appearing as PW-3, has admitted that electricity connection in the suit property might be in the name of defendant No. 1. However, this so- called admission rather goes against defendants because admittedly, now defendants are in possession of the suit house since about three years before the filing of the suit and therefore, if any electricity connection had been obtained in the suit portion during this period, it would not go in favour of the defendants in any manner. On the other hand, the defendants could lead documentary evidence to depict that they had obtained electricity connection in the suit property long ago and not during the period since when plaintiffs alleged the defendants to be in possession of the suit property. In fact, this contention rather goes against the defendants because if the suit property had been ancestral property of the defendants, they would have obtained electricity connection therein long ago, but defendants have not led any evidence to depict that they obtained electricity connection for the suit property long ago. This circumstance would show that defendants took the suit property as licensees from the plaintiffs about three years before the filing of the suit, as pleaded by the plaintiffs.

Learned Counsel for the appellants referred to statements of plaintiffs'' witnesses, but in spite of going through the said statements, learned Counsel for the appellants could not point out anything favourable to the defendants in the said statements.

Learned Counsel for the appellants also contended that suggestion was given to defendant No. 1 in his cross-examination regarding document Mark P-2. However, this document also supports the case of the plaintiffs and not that of defendants. Learned Counsel for the appellants was rather in dilemma as to whether to rely on this document or not. Even on pointed inquiry, he could not come out of his dilemma. This document is copy of agreement and it would rather show that plaintiffs are owners of the disputed house. Learned Counsel for the appellants contended that defendants are not relying on this document. If that be so, then defendants- appellants can derive no capital out of it. Even if this document is taken into consideration, it does not go against the plaintiffs'' case in any manner and it rather shows that plaintiffs are owners of the disputed house.

Plaintiffs have also led evidence that electricity connection exists in the disputed house in the name of Pawan Kumar son of plaintiff No. 1 Lal Chand. This documentary evidence further strengthens the case of the plaintiffs. On the other hand, as already noticed, defendants have failed to produce any evidence of electricity connection or ration cards or any other documentary evidence.

Stand of defendant No. 2 in the written statement is that the suit property is ancestral of the defendants. However, defendant No. 1 stated that he constructed this house by spending Rs. 3,00,000/-. This statement of defendant No. 1 in the witness-box completely demolishes the stand taken by defendant No. 2 in the written statement. It would show that the suit property is not ancestral property of the defendants, as pleaded in the written statement.

It may also be noticed that during the course of arguments, counsel for both the parties referred to a suit filed by defendant No. 1 herein against the plaintiffs herein titled as Balbir Ram @ Balbir Chand v. Jinder @ Harjinder and Ors. seeking permanent injunction in respect of residential house shown in red colour with letters ABCD in site plan annexed with the said suit. Counsel for the appellants showed the site plan annexed by defendant No. 1 herein with his said suit depicting the property claimed by him in that suit. Comparison of the said site plan with site plan Ex.P-10, produced in the instant case by the plaintiffs, reveals that defendant No. 1 in his said suit has claimed only front portion including the suit portion of the bigger house. It leads to the inference that remaining back portion of the house in question is not claimed by the defendants. In other words, claim of the plaintiffs over the remaining back portion of the disputed house has not been denied by the defendants. The only inference that can be drawn from this circumstance is that the suit property is also part of the plaintiffs'' house, as claimed by them.

From the aforesaid discussion, it emerges that plaintiffs have proved their case by leading cogent evidence, whereas there is no satisfactory evidence to prove the version of the defendants. Both the courts below, after appreciation of evidence, have arrived at concurrent finding of fact in favour of the plaintiffs. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal. On the other hand, in view of discussion made herein before, the said finding of the courts below is fully justified and is the only reasonable view that can be taken of the evidence on record. Contentions raised by counsel for the appellants relate to appreciation of evidence and do not raise any question of law, much less any substantial question of law. Lower appellate court is the final court of fact and evidence is not to be re- appreciated in second appeal. However, even on re-appreciation of evidence, as done herein above, it turns out that concurrent finding recorded by both the courts below does not require any interference because the said finding is correct.

For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed.