Jai Singh vs Dalbir and Others

Rakesh Kumar Garg, J.

CM No. 7026-C of 2013

Application is allowed subject to all just exceptions.

CM No. 8547-C of 2013

Application is allowed subject to all just exceptions and the document is taken on record.

RSA No. 2645 of 2013 (O & M)

This is plaintiffs second appeal challenging the judgments and decrees of the courts below whereby his suit for permanent injunction restraining the respondents from interfering in any manner and dispossessing him from the plot in dispute forcibly and illegally has been dismissed. As per the averments, plaintiff-appellant is the owner in possession of the house and plot shown with letters ABCDEFGJ in the site plan situated within the Abadi Deh of village Nagar and in the southern side of the plot and house, there is plot shown with letters GJIH owned by defendant-respondent No. 3 which was given by him to the ancestors of plaintiff-appellant for use and the same is in possession of the plaintiff-appellant and is being used by him peacefully for his domestic purposes. Defendants No. 1 and 2 are headstrong persons and they want to dispossess him from the plot in question without any right, title or interest. Hence the present suit.

Upon notice, defendant-respondents No. 1 and 2 filed their joint written statement raising various preliminary objections. On merits, it was denied that defendant No. 3 had ever given the suit property to the ancestors of the plaintiff or the same was in his possession. It was further averred that the suit property was in possession of defendants No. 1 and 2, and they had purchased it from defendant No. 3 vide sale deed No. 3961 dated 11.11.2005. The remaining averments were denied and dismissal of the suit was prayed for.

Defendant No. 3 filed separate written statement stating that the plaintiff is neither owner nor in possession of the suit property rather defendant No. 1 is the owner in possession of the suit property and prior to that he was the owner in possession of the suit land. The remaining averments were denied.

Replication of the written statement was filed by the plaintiff reiterating the stand taken in the plaint and denying the averments made in the written statement. On the basis of pleadings of the parties, following issues were framed by the trial Court:

Whether the plaintiff is owner in possession of the house and plot in dispute? OPP

If issue No. 1 is proved, whether the plaintiff is entitled to relief of injunction, as prayed for? OPP

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff has no locus-standi and cause of action to file the present suit? OPD

Relief.

After hearing learned counsel for the parties and perusing the record, the trial Court decided all the issues against the plaintiff-appellant and consequently the suit was dismissed with costs.

Feeling aggrieved against the aforesaid order of the trial Court, the plaintiff filed an appeal before the first appellate Court, which was also dismissed vide judgment dated 21.03.2013. While affirming the findings of the trial Court, the lower appellate Court observed as under:

As per the aforementioned evidence, it seems that the land was purchased by the respondent No. 1 from its previous owner vide sale deed Ex. DW-3/A. The document writer as well as Sub Registrar are examined and proved the sale deed thus the ownership of the respondent No. 1 stands proved on the file. Now, the question arises whether the appellant is in possession of the land as licensee. At the out-set it is pertinent to mention here that the appellant has no-where mentioned in the plaint from which period he is in possession over the property in dispute. In cross-examination, he has admitted that the address of Shanker Dass by whom he was into possession in 1983 is of Aligarh (UP). He has also admitted that the suit land remained in possession of Gulab Singh son of Dhanpat with his consent and there is khor and pegs over the suit land. It is the settled law that possession of a person cannot be ascertained merely on the basis of throwing rubbish, placing cow-dung cakes, tethering cattles installation of pegs etc. Reliance can be made towards Bhan Singh and Others Vs. Tej Singh and Others, besides perusal of Ex. P2 would reveal that the land in question was in possession of Gulab Singh son of Dhanpat for the last 50 years as FIR No. 247 of 2006 was lodged by Gulab Singh thus the appellant cannot be held in possession over the suit land. It is a settled law that the plaintiff has to stand on his own legs. It is his specific case that he is in possession as licensee under Defendant No. 3. He ought to have produced the defendant No. 3 to prove his version that in fact defendant No. 3 put him or his predecessor in interest in the possession of the suit land. Rather, his counsel has gone on stressing that the defendant No. 3 needs to be produced by defendant No. 1 in whose favour he executed sale deed of the land in dispute. So, in these circumstances, it comes out that the respondent No. 1 is owner in possession of the suit land and no injunction can be granted against true owner. Reference may be made towards Harniv Sandhu v. Sandeep Singh Sandhu and another, 1999(1) Latest Judicial Reports 438 (Supra) and Om Parkash v. State of Haryana and others, Vol. CXXI (1999-1) 155 (Supra).

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 for consideration in this appeal:

Whether the admission of the respondent No. 3 is sufficient to decree the suit of the appellant, so far as possession of the appellant is concerned?

Whether the sale deed Ex. D1 and DW 3/A have been proved on the record as per law of evidence, especially when the vendor has not been produced to prove the execution of the sale deed?

In support of his case, learned counsel for the appellant has vehemently argued that the courts below have erred at law while holding that the sale deed dated 11.11.2005 (Ex. D1) stands proved. According to learned counsel for the appellant, the said findings are incorrect as Shankar Dass-respondent No. 3 never appeared before the Sub Registrar in order to execute any sale deed in favour of the appellant and thus, the said sale deed is a result of fraud and misrepresentation. On the basis of the aforesaid averments, it has been submitted that the judgments and decrees of both the courts below be set aside and suit of the plaintiff-appellant be decreed.

I have heard learned counsel for the appellant and perused the impugned judgments and decrees of the courts below.

At the outset, it may be noticed that the plaintiff-appellant had filed the instant suit with specific averments to the effect that the plot in dispute is owned by defendant No. 3 and the same has been given to him by defendant No. 3 for use; whereas in the written statement filed by defendant-respondent No. 3 the said assertion of the plaintiff-appellant has been categorically denied by submitting that he had never given the plot in dispute to the appellant for his use and occupation. In the written statement, defendant No. 3 has further taken a stand that earlier he was the owner of the suit property and thereafter defendants No. 1 and 2 have become owners in possession of the suit property.

Thus, it is admitted case of the appellant that the suit plot belongs to defendant No. 3 and appellant is in permissive use of the same. However, the plaintiff has failed to place on record any evidence to support the aforesaid averments that he is in permissive use of the plot in question which is owned by defendant No. 3. Not only this, ownership and possession of defendant No. 1 is evident from the sale deed dated 11.11.2005 (Ex. D1) and the plaintiff-appellant has failed to examine defendant No. 3 or any of his family members in order to prove his possession as lessee over the suit land; whereas defendants have proved on record execution of the sale deed from the oral evidence of DW-3 Scribe as well as DW-4 Sub Registrar Ghanaur. Moreover, the appellant has not laid any challenge to the said sale deed.

In view thereof, no exception can be taken to the findings of the courts below, which have been recorded on the basis of evidence produced on record. In the absence of any evidence to the contrary, no fault can be found with the findings of the courts below.

No substantial question of law, as raised, arises in this appeal. Dismissed.