Gopal and others vs Arun Kumar

Jaswant Singh. J.—Defendants/appellants are in second appeal against the judgement and decree 21.5.2011 passed by the learned Additional District Judge, Palwal, whereby while accepting the appeal filed by the plaintiff/respondent the judgement and decree dated 31.1.2009 passed by the trial court was set aside and the suit of the plaintiff/respondent for grant of permanent injunction was decreed.

Facts necessary for the decision of the present appeal are that plaintiff/respondent filed a suit for permanent injunction alleging therein that he and his brother Bishan Singh are owners in possession of a residential house fully detailed in para 1 of the plaint, consisting of rooms, store, kitchen open chowk, chabutra, stair case and a double storeyed latrine marked by letters ABC and shown in green colour in the site plan. It was further alleged that plaintiff has been residing in the said house since the time of his forefathers and using the said latrines, stair case and chabutra as the property had been inherited by him from his father Lachhi Ram and uncle Khillau Singh. It was further stated that defendant had no right, title or interest in the suit property detailed in para 1 of the plaint. It was also alleged that house of the defendants exists towards the southern side of the house of the plaintiff and they at the instance of anti-social elements were intending and threatening to demolish the double storey latrine, stair case and chabutra as also bent upon to take illegal and forcible possession of the latrine, chabutra and stair case in dispute.

Upon notice defendants filed written statement taking preliminary objections qua locus standi, estoppel, cause of action and maintainability of the suit. On merits it was stated that the boundaries and the measurement of the suit property given in para 1 of the plaint were wrong. It was also denied that plaintiff had inherited the suit property or that defendants had no concern with the same. It was alleged that plaintiff under the garb of present suit intended to make illegal and unauthorised encroachment on the property of the defendants.

On the pleadings of the parties, issues were framed. Both sides led evidence in support of their respective pleas. The learned trial court on the basis of oral/documentary evidence available on record, dismissed the suit of the plaintiff vide judgement and decree dated 31.1.2009. Aggrieved against the same, plaintiff filed an appeal which was accepted by the learned Additional District Judge, Palwal vide impugned judgement and decree dated 21.5.2011;decreeing the suit of the plaintiff and setting aside the judgement and decree dated 31.1.2009 passed by learned trial court. Hence the present second appeal.

It is submitted by the learned counsel for the defendants/appellants that the impugned judgement and decree dated 21.5.2011 passed by the learned Additional District Judge is based on mis-reading of evidence especially when the learned trial court has found that the plaintiff is a trespasser over the portion marked as ABC and as such he is not entitled to grant of any injunction. It is further submitted that learned appellate court has failed to take notice of the fact, as recorded by the learned trial court, that the pipe line of the latrine is leaking resulting in emission of foul smell in the house of the defendants.

After hearing the learned counsel for the defendants/appellants I find no force in the submission made by the learned counsel.

The learned appellate court while accepting the appeal filed by the plaintiff/respondent has found that in the plaint the plaintiff had categorically stated that he is in possession of the disputed property i.e. latrine, stair case etc. and using the same, but the defendants in their written statement did not claim that the suit property belonged to them or Municipal Committee. In the absence of specific denial the learned appellate court has rightly drawn an inference that defendants have admitted the possession of the plaintiff over the suit property. While coming to this conclusion the learned appellate court has taken into consideration the evidence of PW1 Chandan Singh, Draftsman who proved the site plan; as well as PW2 Fateh Singh, who tendered his affidavit Ex.PW2/A stating therein that the plaintiff is in possession over the disputed property. It was noticed by the appellate court that PW2 Fateh Singh was not cross examined regarding ownership of the disputed property. Further, even no suggestion was put to this witness that property in dispute is in possession of the defendants/appellants. Similar is the position with regard to PW3, plaintiff Arun Kumar who was also not cross examined regarding ownership of the disputed property and even no suggestion was put to him that he was neither owner nor in possession of the suit property. Thus it has rightly been found by the appellate court that this goes to show that defendants are admitting the possession of the plaintiff over the suit property. Even DW1 Narotam Lal, DW2 Om Parkash and DW3 Smt. Kela Devi in their cross examination had admitted that the plaintiff was using the latrines in question. Not only that the learned appellate court has also made pointed reference to an altogether version given by the defendants while leding their evidence that the land underneath the disputed structure was lying vacant and plaintiff has forcibly raised latrine tank etc. on that disputed property. This stand of the defendants was rightly rejected by the appellate court since it was at variance with the stand taken by them in their written statement and as such appellate court rightly held that defendants could not travel beyond their pleadings and or set up a new case and hence were liable to be non-suited.

As regards the grievance of the defendants that due to leakage in the latrine pipe there is seepage in their house resulting in emission of foul smell, the learned appellate court in the impugned judgement and decree has directed that plaintiff will use the latrine portion in such a manner that it does not create any nuisance to his neighbours and will not transgress in the property of the defendants, thus safeguarding the interest of defendants and giving them a right to raise their grievance in appropriate proceedings before appropriate forum.

For the reasons stated above, in my opinion, no question of law much less substantial question of law arises for determination in this appeal and the same is hereby dismissed.