Hari Ram vs Bharat Singh (Dead) by LRs.

N.K. Kapoor, J.—This is plaintiff''s regular second appeal. Plaintiff filed a suit for permanent injunction and in the alternative for possession.

Briefly put, it is the case of the plaintiff that he is ownerin possession since the time of his forefathers of a Gitwar shown by letters `ABCD'' in red colour in the site plan situated in village Amboli, Tehsil Kosli, District Rohtak. According to the plaintiff there is a boundary wall around this Gitwar, which is at a height of 1 ft. to 4 ft. at different places. There are kikkar trees, Bitora, Chhan, Khunte etc. and that the plaintiff is using it for his residential purposes. According to the plaintiff this property came to him from his grandfather Bhani, comprised in Khewat No. 45, Khasra No. 135 during the consolidation of holdings in the village in the year 1979. Since the defendant without having any right had started interfering in his peaceful possession, hence the present suit.

Defendants resisted the plaintiff''s claim on a number of grounds, namely, the suit is not maintainable in the present form, that the plaintiff has no locus standi to file the present suit; and that the suit has been filed to harass the defendants and so they are entitled to special costs under Section 35A CPC. On merits, the defendants denied that forefathers of the plaintiff were owners in possession or that the plaintiff is using the suit land for preparing cowdung cakes and Bitora etc. or that there are Khunte, Kurli and Chhappar. According to the answering defendant infact they are in possession of the property and are using it to the exclusion of other un interruptedly. Otherwise too, the contention of the plaintiff that suit land form part of Khasra No. 135 is wrong. In fact, the plaintiff has no right or interest in the suit property.

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

(1) Whether the site in dispute is part of Khasra No. 135 and the plaintiff is owner in possession of the same ? OPP.

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

(3) Whether the suit is not maintainable ? OPD.

(4) Whether the defendants are entitle to special costs ? OPD.

(5) Relief.

An additional issue was framed on 13.4.1987, which reads as :

(4A) Whether the report of the local Commissioner is liable to be set aside as alleged ? OPD.

Under issue No. 4A the trial Court on consideration of evidence led upheld the objections raised by the plaintiff with regard to the report of the local Commissioner and to set aside the same. Accordingly, this issue was decided against the defendants and in favour of the plaintiff. Under issue No. 1 the Court held that as per documentary evidence i.e. copy of consolidation for the years 1879 exhibit P.W. 6/C Khasra No. 135 measuring 5 Kanals 4 marlas is a Gitwar owned by Shamlat Deh, which is shown to be in possession of Bhani, ancestor of plaintiff and others. Since as per plaintiff''s own case that defendants are in possession of the property, the Court decided this issue holding plaintiff to be the owner whereas defendants to be in possession of the same though as trespassers. Under issue No. 1 it was held that plaintiff is owner of the suit property and so has the locus standi. Resultantly, the suit of the plaintiff was decreed.

Defendants challenged the findings recorded by the trial Court in appeal. Lower appellate Court chose to examine the question of possession in the first instance. Plaintiff examined Raghubir Singh P.W. 1, Darya Singh, P.W. 2, Hari Ram son of Ram Pat P.W. 3, Siri Chand P.W. 4, Ram Kumar, Draftsman P.W. 5 and Hari Ram plaintiff P.W. 6. Documentary evidence consisted of site plan Exhibit P.W. 5/A, copy of asks shajra exhibit P.W. 6/A, copy of khewat Bandobast exhibit P.W. 6/B and the report of the local Commissioner exhibit P.W. 6/D and copy of pedigree table exhibit P.W. 6/E. Defendants examined Bharat Singh D.W. 1, Man Chand D.W. 2 and Kasturi D.W. 3 and tendered in evidence a suit plan, exhibit D.1. On perusal of the evidence led by the plaintiff the lower appellate Court noticed that Saravshri Darya Singh P.W. 2 and Hari Ram son of Ram Pat P.W. 3 admitted in their statements that in fact Bharat Singh and others were owners in possession of this plot. It is in keeping in view the statements of the aforesaid two persons examined by the plaintiff that the lower appellate Court affirmed the findings of the Trial Court regarding possession in favour of the respondentthe defendants. Examining the second limb of the issue i.e. regarding the ownership of the property in dispute the lower appellate Court tested the evidence adduced by the plaintiff in the light of averments made by him in the plaint. According to the lower appellate Court it is the case of the plaintiff that the land in dispute forms part of Khasra No. 135 and so it is for the plaintiff to clearly prove that the suit land forms part of Khasra No. 135. Since the report of the local Commissioner had been discarded by the trial Court in view of the objections raised by the plaintiff, except for the oral evidence there was no reliable evidence on record to prove beyond doubt as to whether the plot in dispute forms part of khasra No. 135 or not. Accordingly, the Court reversed the conclusion of the trial Court under issue No. 4A. Similarly, the Court found no substance in the contention of the plaintiff that the present land is owned by him in the absence of any cogent evidence to connect the entry made at the time of settlement in the year 1879, to the present state of affairs. Otherwise too, the lower appellate Court held that this Khasra number is shown to be owned by Shamlat Deh and there being no proof that any right of ownership and been acquired by plaintiff''s predecessorsininterest, this contention of the plaintiff was also found to be devoid of any substance. Accordingly, the appeal was accepted thus ordering dismissal of the suit.

Learned counsel for the appellant has termed the findings record by the lower appellate Court to be wholly unwarranted as per evidence on record and otherwise vitiated as material evidence has simply been ignored. According to the counsel, the lower appellate Court erred in law in brushing aside the documentary evidence adduced by the plaintiff to prove his title as well as possession for no valid reason. According to the counsel, the lower appellate Court has given undue importance to somewhat inconsistent statement made by the two witnesses examined by the plaintiff. At best their evidence could be ignored. So, even in the absence of the statement of these two witnesses the other evidence is creditworthy and in view of the fact that plaintiff has claimed to this property from his forefathers mere ipsi dixit of the defendants or their witnesses ought not to have weighted with the Court to decline the legitimate relief sought by the plaintiff as well as granted by the trial Court.

Broad facts leading to the present appeal have been briefly noticed. According to the plaintiff the suit land form part of khewat No. 45 khasra No. 135 as per consolidation of holdings of the year of 1879. As per document exhibit P.W. 5/B Shamlat Deh is recorded in the ownership column. In the column of cultivation names of Jia Ram, Parsa, Bhani etc. have been mentioned therein. Except for this document no other entry of the revenue record has been adduced in evidence by the plaintiff as to connect this particular entry with the present existing state of affairs. At best as per this entry land comprised in khasra No. 135 is owned by Shamlat Deh and was in possession of Jia Ram and others, namely, Bhani in the year 1879. Thus, during this span of more than 100 years what precise change has taken place with regard to the possession has not come on record. All the same an attempt was made to fix the precise location of the plot in dispute by getting it duly demarcated by a local Commissioner. Local Commissioner appointed by the Court could not fix the identity of the plot in dispute as he failed to identify the three fixed points essential to identify the exact location of the property in dispute. It is with this background that objections raised by the plaintiff against the report of the Local Commissioner were accepted. So far as the identity of the land evidence adduced by the parties is oral which primarily relates to its possession i.e. plaintiff''s witnesses supported the case of the plaintiff whereas defendants'' witnesses supported the case of the defendants. It is on considering the oral deposition of these witnesses that the lower appellate Court finally found substance in the claim of the defendants that they are in possession of the property in dispute. For this the lower appellate Court took support from the deposition of the two witnesses Darya Singh P.W. 2 and Hari Ram P.W. 3 also. According to the counsel for the appellant the statement of these two witnesses have been read out of context. On perusal of the statements of these witnesses I find this objection of the appellant devoid of merit. So, the plaintiff has failed to prove his possession over the property in dispute. As regard the ownership except for the entry exhibit P.W. 6/C showing Bhani to be in possession, it indeed is not possible to infer that the plaintiff''s forefathers continued to remain in occupation of that property and that the property comprised in khasra No. 135 is the same which is not subject matter of the dispute. Since plaintiff has come out to lay claim to the property on the basis of ownership as well as possession, it is for the plaintiff to prove beyond doubt his status as well as possession. Plaintiff, however, has failed to substantiate any one of these contentions. Findings recorded by the lower appellate Court are perfectly just and legal calling for no interference.

Dismissed. No costs.