Jai Ram vs Mukh Ram

Jaswant Singh, J.

CM No. 10440-C of 2012 has been filed u/s 5 of the Limitation Act read with Section 151 CPC seeking condonation of 07 days delay in filing the appeal.

For the reasons stated in the application duly supported by an affidavit of the appellant, the same is allowed and delay of 07 days in filing the present appeal is condoned.

CM No. 10441-C of 2012 has been filed u/s 5 of the Limitation Act read with Section 151 CPC seeking condonation of 143 days delay in refilling the appeal.

For the reasons stated in the application duly supported by an affidavit of the clerk of the counsel for the appellant, the same is allowed and delay of 143 days in refilling the present appeal is condoned.

R.S.A. 3873 of 2012.

Plaintiff/appellant is in second appeal against the concurrent findings returned by both the courts below whereby his suit for permanent injunction was dismissed by the learned Additional Civil Judge (Sr. Divn.), Yamuna Nagar at Jagadhari vide its judgment and decree dated 8.11.2008 and the findings thereof were affirmed by the learned Additional District Judge, Yamuna Nagar at Jagadhari vide judgment and decree dated 18.11.2011. In brief, the facts of the case are that plaintiff had filed the suit for permanent injunction claiming himself to be owner in possession of the property in dispute and alleged that his possession over the property which is a bara is coming since the year 1948-49 where he has been placing his Goharas, cow dung and had also planted Poplar trees. It was further the case of the plaintiff/appellant that defendant who is the sarpanch of the village is taking undue advantage of his post and is now trying to dispossess him from the property in question.

Upon notice, defendant/respondent filed written statement whereby all the pleas were controverted and it was stated that the plaintiff is neither the owner nor in possession of the property and in fact the property in question is part of Khasra no. 115 which is a part of old Abadi and reserved by Harijan community of the village for the last more than 100 years. It was further pleaded that the property in question was in possession earlier with the father of the defendant and after his death with the defendant and in fact defendant: has also filed a petition u/s 13-A of the Punjab Village Common Land Act which already stands decreed.

Replication was filed wherein the entire contents of the plaint were reiterated and that of the written statement were denied.

From the pleadings of the parties issues were framed. Both sides lead evidence in support of their respective claims and after appreciating their evidence, learned trial Court dismissed the suit of the plaintiff vide judgment and decree dated 08.11.2008 and the findings thereof were affirmed by learned lower Appellate Court vide judgment and decree dated 18.11.2011. Hence the present second appeal.

I have heard learned Counsel for the plaintiff/appellant and have also gone through the case file carefully with his able assistance.

Learned Counsel for the plaintiff/appellant has vehemently argued that both the courts below have misread the evidence on record and returned perverse findings as it is proved that the plaintiff is in possession of the property for the past many years and defendant is a head strong person who is trying to enter into the possession of the property. It was further argued that there is no evidence at all on the file that has been led by the defendant to substantiate his plea that the property in dispute forms part of Khasra No. 115 and thus on this ground alone the suit of the plaintiff is liable to succeed and consequently the appeal deserves to be allowed.

After hearing learned Counsel for the appellant, this Court is of the considered view that the present appeal is devoid of any merit and the same deserves to be dismissed. It is by now settled position of law that plaintiff has to stand on its own legs and must succeed or fail on the strength of his own evidence. He cannot take advantage of the weakness of the case of the defendant. In the present case, plaintiff/appellant has set up a positive case to the effect that he is owner in possession of the property and thus the onus was clearly upon the plaintiff to substantiate his plea of being in possession as owner of the property. However, perusal of the record reveals that there is no documentary evidence regarding the title of the plaintiff over the bara in question. It is interesting to see that even the defendant has not been able to prove his ownership or possession over the bara in question but as the plaintiff had filed the present suit, he was to prove his ownership & possession over the bara which he has miserably failed to prove. Therefore the case of the plaintiff has to fail.

Learned Counsel for the appellant has although tried to take me through the oral evidence led by him in shape of his own testimony as well as the testimony of PW-2 Om Prakash, Draftsman regarding ownership and possession of the disputed property, however the careful perusal of the testimonies reveals that the same are completely unreliable. The testimony of PW-2 Om Prakash, Draftsman cannot be believed because he had categorically stated that he had not seen any document regarding ownership of the property in question and further he had also stated that he is not aware as to whether the bara in question bears any number or not. He had also stated that he has no knowledge as to what articles are lying there and thus, as a necessary corollary, doubts the claim of the draftsman visiting the spot and preparing the site plan on the spot. Therefore, the self serving statement of the plaintiff is not enough to prove his possession over the disputed bara. It is not in dispute that the property in question has been recorded in the name of Panchayat Deh and plaintiff has also admitted that property in dispute is situated within the Abadi Deh of the village. Thus, a cumulative effect of all the above discussed evidence leads to only one conclusion that the plaintiff has not been able to substantiate his claim of being the owner in possession of the property in question and thus the present suit has to fail. In view of the above, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.