Bhagwana vs Sher Singh and Another

N.K. Kapoor, J.—This Regular Second Appeal is against the judgment and decree of the Additional District Judge whereby the appeal filed by the defendants has been accepted thereby dismissing the suit of the plaintiff.

Plaintiff filed a suit for mandatory injunction against the defendants directing them to demolish the illegal construction raised by them over the site in dispute as detailed in para No. 1 of the plaint. According to the plaintiff, the site in dispute is part of the adjoining house of the plaintiff bearing No. 1059 as per record of the Notified Area Committee, Kalanaur, and the area in dispute as well as the remaining area of the area is approximately 120 sq. yards. The disputed site is being used by the plaintiff for tethering cattle which is surrounded on three sides by a wall except the western side. In fact, this forms part of the courtyard of the house. According to the plaintiff, defendants have a house on the western side of the disputed property and it is on 1.1.1982 that defendants tried to take forcible possession of the disputed site which led the plaintiff to file a suit for permanent injunction restraining them from interfering in his possession on 21.1.1982. On 23.1.1982 the Court granted ad interim injunction restraining the defendants from illegally and forcibly encroaching upon the site in dispute. Despite the stay order, the defendants raised construction on the disputed site. On account of some formal defect, the plaintiff withdrew the suit on 11.5.1984 with a prayer to file a fresh one. Hence, the present suit.

The defendants contested the suit and filed written statement. The claim of the plaintiff was resisted as barred by principle of res judicata; plaintiff is estopped by his own act and conduct from filing the present suit; the plaintiff has no cause of action to file the present suit and that the suit is false and vexatious. On merits, it was stated that the plaintiff is not the owner of the disputed house and that the defendants are owners in possession of the house in dispute. Even the boundaries of the disputed house are wrongly shown in the site plan. It was further denied that the house in dispute is part of plaintiffs house.

On the pleadings of the parties, following issues were framed :-

Whether the plaintiff is owner in possession of the property in dispute as alleged? OPP.

Whether the construction raised by defendants is illegal? If so, to what effect? OPP.

Whether the suit is not maintainable as alleged in preliminary objection No. 1 of the written statement. If so, effect? OPD.

Whether the plaintiff is estopped from bringing the present suit. If so, to what effect? OPD.

Whether the plaintiff has no locus standi to file the suit? OPD.

Whether the suit of the plaintiff is false and frivolous entitling the defendants to special costs u/s 35-A, C.P.C.? OPD.

The trial Court came to the conclusion that the plaintiff is owner in possession of the site in dispute. It was further held that the construction raised by the defendants over the same is illegal. Resultantly, the suit was decreed.

Before the lower Appellate Court, the defendants challenged the finding of the trial Court in respect of material issue with regard to ownership and possession of the property in dispute and its maintainability. Challenging the finding of the trial Court, the appellants urged that the Court erred in law in not properly construing the entry in the assessment register, Exhibit PW 5/A and Exhibit P-l (site plan). It was urged by the appellants that these documents nowhere prove that the site in dispute including the area in possession of the plaintiff measures 120 sq. yards. Similarly, the trial Court erred in law in relying upon the report of the Local Commissioner, Exhibit PW 6/A and the site plan prepared by him, Exhibit PW 6/B as these documents too do not in any manner lend support to the conclusion arrived at by the Court that the plaintiff is owner and in possession of the site including the house and both these measure 120 sq. yards. The lower Appellate Court found substance in this submission of the appellants and so reversed the finding of the trial Court and so accepted their appeal thereby dismissing the suit of the plaintiff.

The sole grievance of the appellant-plaintiff is that the lower Appellate Court has erred in law in not properly perusing the document, Exhibit PW 5/1 and the site plan, Exhibit P-l which clearly prove that the site in dispute including the house of the plaintiff measures 120 Sq. yards which is in exclusive possession of the plaintiff. The discarding of this unimpeachable evidence and that too only on untenable grounds has led to the passing of impugned judgment and decree which is unsustainable in law. According to the learned counsel for the appellant, the lower Appellate Court is guilty of misreading of evidence which thus calls for interference by this Court. Similarly, the Court for no valid reason has discarded the Local Commissioner''s report which clearly prove the plaintiffs ownership as well as possession.

On the other hand, learned counsel for the respondents has challenged this assertion of the appellant stating that the lower Appellate Court on reappraisal of documents adduced in evidence by the plaintiff has conic to the correct conclusion that the plaintiff is neither owner nor in possession of the disputed site. According to the counsel, there has been no misreading of any document referred to by the learned counsel for the appellant. The document, Exhibit PW 5/1 no where proves that house No. 1059 measures 120 sq. yards as alleged. In fact, the lower Appellate Court has dilated upon this aspect of the matter in para No. 9 and 10 of the judgment. The appeal being devoid of any merit is liable to be dismissed with costs.

I have heard learned counsel for the parties and perused the judgment as well as she documents referred to by the respective counsel, It is the case of the plaintiff that he is owner in possession of property bearing No. 1059 as per assessment register of the Notified Area Committee. This property measure 120 sq. yards consist of a house and a portion marked ABCD in the form of a courtyard for tethering the cattle. The main reliance is upon the site plan Exhibit P-1 and entry in the assessment register for the year 1981-82, Exhibit PW 5/1. The site plan, a document got prepared by the plaintiff from a draftsman, by itself cannot be construed to be a document of title nor it would prove the ownership of the plaintiff over the area drawn upon this site plan. At best, it can be construed that it signifies the existence of some constructed area. To prove the ownership, the only document on record as per the case set up by the plaintiff is the entry in the assessment register for the year 1981-82. Under column No. 6 relating to ''assessment value'' or ''area or ''frontage'', the figure of ''120'' has been recorded. Whether it pertains to assessment value or area or frontage is not clear from the reading of this entry. According to the counsel for the appellant, this signifies square yards of the area which is being contested by the respondents. The plaintiff has examined Mr. Ramesh, a Clerk of Municipal Committee, Kalanaur, to prove the document Exhibit PW 5/1. As per statement of this witness, the area of the house has not been mentioned. It is not clear from this entry whether figure of ''120'' pertains to the assessment of the property or area or frontage of the area in dispute. In fact, the dispute between the parties is whether house No. 1059 comprises of site in dispute as well. There is no proof on record with regard to ownership of the property in dispute. The report of the Local Commissioner, Exhibit PW 6/8 also lead us nowhere. As a matter of fact, the Local Commissioner had been appointed by the Court to inspect the site and to give a report as to whether any construction was raised over the plot in dispute marked ABCD. It is pursuance to this direction of the Court that the Local Commissioner visited the spot and submitted his report stating that the site in dispute appears to have been constructed after 23.1.1982. This report was submitted in the earlier case which was withdrawn by the present plaintiff. Even this report of the Local Commissioner makes no reference to the measurement of the area in question. Thus, I am of the view that the lower Appellate Court rightly came to the conclusion that the plaintiff has miserably failed to prove either ownership or possession over the site in dispute. Thus, finding no merit in this appeal, I dismiss the same. The parties will, however, bear their own costs.