Dr. Mani Ram vs Ram Tyagi and Others

L.N. Mittal, J.

CM No.1554-C of 2010

For reasons mentioned in the application, which is accompanied by affidavit, delay of 39 days in filing the appeal is condoned.

Main Case:

Plaintiff Dr. Mani Ram having remained unsuccessful in both the courts below has come up by way of instant second appeal.

The Plaintiff-Appellant claimed to be in possession of the suit plot situated within Abadi Deh of village Faridpur for the last 14 years. Defendants/Respondents allegedly threatened to dispossess the Plaintiff therefrom when he started raising construction therein and also obstructed the said construction. The Plaintiff, therefore, sought permanent injunction.

Defendants inter alia pleaded that the suit land is land of Sheetla Mata Mandir i.e. place of worship and being public property, it vests in Gram Panchayat, but the Plaintiff wants to encroach upon the suit land without any right, title or interest therein. Various other pleas were also raised.

Learned Additional Civil Judge (Senior Division), Karnal vide judgment and decree dated 21.07.2006 dismissed the Plaintiff''s suit. First appeal preferred by the Plaintiff has been dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 08.04.2009. Feeling aggrieved, Plaintiff has filed the instant second appeal.

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

Learned Counsel for the Appellant vehemently contended that the suit property being situated within Abadi Deh, there is no documentary evidence of ownership or possession thereof, but the Plaintiff has led oral evidence to prove his possession over the suit land. Learned Counsel for the Appellant also referred to report of Local Commissioner. It was also contended that even the lower Appellate Court has found that the Plaintiff is in possession of the suit plot but observed that he has no right to remain in possession thereof. It was contended that the Plaintiff cannot be dispossessed from the suit plot except in due course of law.

I have carefully considered the aforesaid contentions, but find no merit therein. Plaintiff''s oral evidence is not sufficient to prove his possession over the suit plot. On the contrary, Plaintiff''s evidence stands fully rebutted by the oral evidence of Defendants. Onus to prove that Plaintiff is in possession of suit land was on the Plaintiff. He has failed to discharge the said onus. Report of the Local Commissioner also does not help the Appellant in any manner because the said report only mentioned the existing state of affairs at the spot, but it does not depict in any manner that Plaintiff-Appellant is in possession of the suit land. There is also no finding by the Lower Appellate Court that the Plaintiff is in possession of the suit land. On the contrary, Lower Appellate Court observed that there could be two possibilities i.e. either the Plaintiff is not in possession of the plot in dispute and even if the finding is given that he is in possession of the plot, even then his possession is unauthorized and is encroachment. It is thus manifest that there is no finding by the Lower Appellate Court that Plaintiff-Appellant is in possession of the suit land. On the contrary, it appears from the pleadings and evidence of both sides that the Plaintiff-Appellant tried to encroach upon the suit plot by initiating construction but his said attempt was thwarted by the Defendants. Merely because the Plaintiff tried to raise construction on the suit plot, he could not be said to be in possession thereof. The Plaintiff has also not explained as to how and when he came in possession of the suit plot and what is his right, title or interest therein.

Concurrent finding recorded by the courts below non-suiting the Plaintiff is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. On the contrary, fate of the lis depends on finding of fact regarding alleged possession of the Plaintiff over the suit plot. Lower Appellate Court is the final court of fact. Consequently, no interference is warranted in second appeal. Even otherwise, the Plaintiff having no right, title or interest in the suit land, could not be granted injunction regarding public property. The appeal is devoid of any merit and is accordingly dismissed in limine.