Hukam Chand vs Nafe Singh

Rakesh Garg, J.—This is plaintiff''s second appeal challenging the judgment and decree dated 12.2.2008 of the Additional Civil Judge (Sr. Division) Bahadurgarh, whereby his suit for permanent injunction was dismissed. Further challenge has been laid to the judgment and decree dated 21.10.2010 of the Additional District Judge, Jhajjar, dismissing his appeal against the aforesaid judgment and decree of the trial Court.

The appellant filed the instant suit claiming himself to be owner in possession of the suit property as described in the plaint stating that the suit property was given to him in family partition but Lakhmi Chand, his brother, alienated the suit property orally in favour of Laxmi Narayan son of Shri Ram resident of village Balour, Tehsil Bahadurgarh without any right or authority. Thus, the dispute arose and in order to settle the family dispute said Lakhmi Chand got the property shown with red colour in exchange from the aforesaid Laxmi Narayan by way of exchange deed dated 19.8.1982. He was given possession of red portion of the suit property by his brother on 15.10.1982 as owner by way of family settlement of the even date whereas remaining land of Green colour was later on purchased by the plaintiff himself verbally from said Laxmi Narayan. It was further averred that after coming into possession over the suit property, he was enjoying his possession peacefully but defendants, who are strong headed persons were interfering into his peaceful possession without any right or authority to do so. Despite requests made, they remained adamant and were threatening to open a door in the eastern wall of the house and the defendants finally refused to accede to his request on 17.7.2004. Hence, the present suit.

Upon notice defendant-respondent No. 1 appeared and filed written statement. Defendant-respondent No. 2 failed to contest the petition despite service and was proceeded against ex parte. Defendant No. 3 made a statement before this court admitting the case of the plaintiff. Subsequently, he was also proceeded against ex parte.

In the written statement defendant No. 1 admitted execution of exchange deed dated 19.8.1982 between Laxmi Narayan and Lakhmi Chand but all other averments were denied. It was further contended that site plan showing the suit property was not correct and defendant No. 1 was in possession of the property as shown in the site plan attached with the written statement. Execution of the family settlement dated 15.10.1982 was denied stating that the same has been concocted to deprive the defendants of their rights in the property received by them by way of exchange. It was further stated that the ancestral property was already partitioned between the father of the defendants, plaintiff and other co-sharers in the year 1955. Dismissal of the suit was prayed for.

The appellant filed replication to the written statement of defendant-respondent No. 1 controverting the averments made in the written statement and reiterated the contents of the plaint.

From the pleadings of the parties the following issues were framed:

(1) Whether the defendant is alienating the property and interfering plaintiffs possession by opening door in the eastern wall of the house as alleged? OPP.

(2) If issue No. 2 is proved, whether the plaintiff is entitled to the injunction as prayed for? OPP.

(3) Whether the defendant is owner in possession of the property shown by letters ABCDEFGH shown in the site plan, if so to what effect? OPD.

(4) Whether the plaintiff has no locus-standi to file the present suit? OPD.

(5) Whether the suit is not maintainable in the present form? OPD.

(6) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD.

(7) Whether the plaintiff has not come in the court with clean hands? OPD.

(8) Whether the defendant is entitled for special cost u/s. 35-A CPC? OPD.

(9) Relief.

Both the parties led evidence to prove their respective case.

The trial Court while dismissing the suit held that the appellant has miserably failed to prove execution of family settlement Ex. P1 dated 15.10.1982 and has further failed to prove his actual physical possession over any part of the suit property.

Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal before the Lower Appellate Court which was also dismissed.

While dismissing the appeal, the Lower Appellate Court observed as under:

Plaintiff claims to have acquired the suit property through a family settlement dated 15.10.1982. Plaintiff has relied upon the document EX. P1 to show the existence of the said family settlement. However, vide the document Ex. P1 Lakhmi Chand had declared that 120 Sq. yards of land obtained by him through exchange with Laxmi Narain would now belong to the present plaintiff. Lakhmi Chand also relinquished his share over another piece of land vide the document Ex. P1. However, a document can be called a family settlement only if it is signed by all the members of the joint family. Admittedly, the document EX. P1 is not signed by all the members of the joint family. Moreover, in a family settlement, every share-holder gets some share in one form or the other. However, vide document EX. P1 cannot be deemed to be a family settlement between the members of the joint family. Accordingly, this document required registration as per the law of registration. Admittedly, the document EX. P1 is not registered. That being so, the document EX. P1 cannot be relied upon by the court.

Further, the plaintiff claims that Lakhmi Chand had given the suit land to him vide the document Ex. P1. However, Lakhmi Chand could give the suit land to the plaintiff only if he could prove his own ownership over the same. In the exchange-deed Ex. P3, Lakhmi Chand had claimed to be the owner of the suit land. However, Lakhmi Chand had failed to explain as to how he became the owner of the suit land. There is nothing on record to prove the ownership of Lakhmi Chand over the suit land.

Law is well settled that a vendor cannot pass a better title than he himself has. As discussed above, Lakhmi Chand has failed to prove his ownership over the suit land. Accordingly, Lakhmi Chand could not have transferred the ownership of the suit land to the plaintiff vide document Ex. P1. Thus, the plaintiff cannot derive any title to the suit property though the document Ex. P1.

Still further, the plaintiff claims to be in possession of the suit land since the year 1982. The onus to prove a fact is upon the party that asserts the said fact. Accordingly, the onus was upon the plaintiff to prove his possession over the suit land by cogent evidence. However, the plaintiff failed to adduce any cogent evidence to prove his possession over the suit land. There is nothing on record to prove the actual possession of the plaintiff over the suit land. The failure of the plaintiff to prove this basic fact also makes his case qua the suit property highly doubtful.

For the reasons stated above, the plaintiff has miserably failed to prove his ownership and possession'' over the suit land. Accordingly, the plaintiff has failed to show as to how he is entitled to the relief as claimed by him.

In these premises, no fault can be found with the impugned judgment/decree dated 12.2.2008 of learned trial court. For reasons stated above, the said impugned judgment and decree of learned trial court is hereby affirmed.

Still not satisfied, the plaintiff has filed the instant appeal challenging the judgments and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal for consideration:

(i) Whether the impugned judgments and decrees passed by learned courts below are based upon misreading of evidence and hence liable to be set aside by this Hon''ble High Court?

(ii) Whether the impugned judgments and decrees passed by learned courts below are based upon conjecture and surmises and hence liable to be set aside?

Counsel for the appellant has vehemently argued that the Courts below have erred in not appreciating the evidence produced by the appellant on record. Counsel for the appellant has further argued that it has been proved that Lakhmi Chand, father of the respondents, got exchanged the disputed land with Laxmi Narayan vide exchange deed dated 19.8.1982 as proved from the testimony of Laxmi Narayan who appeared as PW-1 and admitted on oath that he had exchanged the land and was given to the appellant in a family settlement held between the brothers and thus, the Courts below have ignored the evidence which has resulted into perversity of the findings giving rise to the substantial questions of law, as raised, in the grounds of appeal. According to the counsel for the appellant, respondent No. 3 has admitted the entire case of the appellant. Moreover, the appellant has constructed his residential house over the suit property and is in continuous and peaceful possession since 15.10.1982. However, the Courts below have not appreciated the facts of the case properly, therefore, giving rise to the substantial questions of law as raised.

I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.

In the case in hand, the appellant has sought permanent injunction qua suit property on the ground that red portion of the suit property was given to him in the family settlement dated 15.10.1982 whereas green portion of the suit property was purchased by him from Laxmi Narayan and thus, he was entitled to protect his possession against forcible dispossession at the hands of the respondents. Needless to say, defendant-respondent No. 1 though have admitted execution of exchange deed dated 19.8.1982, but have claimed site plan Ex. P2 to be incorrect pleading that site plan Ex. D1 depicts the actual and existing state of affairs. The trial Court while non-suiting the appellant has recorded a finding of fact to the effect that the site plan Ex. P2 relied upon by the appellant and the boundaries & measurements of the site plan of exchange deed do not tally with each other meaning thereby that site plan Ex. P2 relied upon by the appellant does not depict actual and existing state of affairs and is incorrect. The trial Court has further recorded a finding that Laxmi Narayan while appearing as PW-1 has not uttered a single word to the effect that he ever sold green portion of the suit property in favour of the appellant or that the plaintiff-appellant has purchased the green portion from him. In fact, said Laxmi Narayan while appearing as PW-1 has stated only to the extent that red portion of the suit property as shown in the site plan Ex. P2 has been given by him in exchange to father of defendants, vide exchange deed Ex. P3.

A further finding has been recorded by the trial Court that execution of the family settlement Ex. P1, on the basis of which the appellant is claiming red portion of the suit property shown vide site plan Ex. P2 relied upon by him, has not been proved as the said family settlement has been written on a plain paper and the subscriber of the said family partition, who was alive and available, has not stepped into the witness box to prove the same and the testimonies of PW-1 Laxmi Narayan and PW-4 Lal Chand do not inspire confidence which are contradictory with each other. The aforesaid findings of the trial Court have been further upheld by the Lower Appellate Court. Both the Courts below have further found that the appellant is not in possession of the suit property. Even before this Court no material evidence has been pointed out on the basis of which concurrent findings, as recorded by the Courts below, could be controverted.

Thus, the Courts below have recorded a concurrent finding of fact that the appellant has failed to prove his case and has not been found to be in possession.

In view of the aforesaid discussion, it cannot be said that the findings of the Courts below suffers from any perversity.

In view thereof, this court finds no merit in this appeal as no substantial question of law arises for consideration.

Dismissed.