Jogeshwar vs Vinod Kumar and others

G.S. Sandhawalia, J.—The present appeal has been filed by defendant No. 3 against the judgment of the Lower Appellate Court wherein his relief for declaring him as owner in possession of the disputed plot had been declined by the Lower Appellate Court on the ground that he had not filed any counter claim before the trial Court and could not agitate this matter for the first time in appeal.

The facts in brief are that the predecessor-in-interest, namely, Murlidhar of the respondents No. 1 to 4 herein filed a suit for permanent injunction initially against respondents No. 5 and 6 herein (defendants No. 1 and 2), namely, Bajrang Lal and Rohtash Kumar. The suit was pertaining to the plot in dispute bearing unit No. W 218 boundaries of which were given in the plaint and was situated in Bhiwani. The case of the plaintiff was that the plot was owned by his father who had inducted one Sunder wife of Kesho Ram as tenant and that the father of the plaintiff had died on 3.3.1947 and the plaintiff has started residing in Kaithal since 1947 in connection with business. That on account of the old age of the construction on the plot, the same fell down and notice u/s 115/149 of the Municipal Committee Rules was issued in the name of the plaintiff and initially the house tax was paid by his father and it is the plaintiff who is now paying the same. It is alleged that since 1970-71 the suit property is in the name of the father of the plaintiff in the record of the Municipal Committee and defendants have no concern with the property and defendant No. 1 wanted to sell the suit property to defendant No. 2 by claiming himself to be owner of the same. Subsequently, defendant No. 3 filed an application and he was made party vide order dated 23.2.1996, whereas defendant No. 2 allowed himself to be proceeded against exparte on 9.1.1996. The case of the defendant No. 1 was that he was in actual physical possession of the property in dispute for more than 12 years peacefully and openly and that before him his father was in actual possession. The possession of Sunder wife of Kesho Ram was admitted but it was contended that she was residing there with the consent of Nanga father of the answering defendant No. 1. Defendant No. 3 filed separate written statement and averred that house No. W 217 and W 218 were owned by one Sahla Brahman in the year 1916 and partitioned between Fateh Singh and Ram Parshad who got 2/3rd share in W 218 and 1/3rd share in W 217 which fell to the share of widow of Matu. On account of financial difficulties, Fateh Singh mortgaged with possession his share in favour of Chhaju Ram on 25.8.1920 and then again in favour of one Ganpat on 6.12.1920. It was alleged that Fateh Singh failed to get the mortgage redeemed and sold his mortgage rights in favour of Chhaju Ram on 30.7.1926 for a sale consideration of Rs.300/-. However, Chhaju Ram could not make the payment so Gangpat sold his mortgage rights in favour of Ram Swaroop son of Ram Narain on 3.8.1926. On the other hand, Chhaju Ram by playing fraud was executed sale deed in favour of Har Narain qua 1/3rd share for a sale consideration of Rs.99/-by Bakhtawari widow of Matu, grand mother of defendant No. 1 despite knowing the fact that she has no concern or connection with property. On account of the forged deed Chhaju Ram in connivance with Shri Nanga father of defendant No. 1 was succeeded by Radha Krishan in the year 1934, who further sold the same in favour of Ram Swaroop, father of answering defendant on 28.2.1950 and accordingly, defendant No. 3 staked claim.

The trial Court after taking into consideration the pleadings framed the following issues:

Whether the plaintiff is owner in possession of the disputed house bearing No. W.218?OPP

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

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

Whether the plaintiff is estopped by his own act and conduct from filing the suit?OPD

Whether the suit of the plaintiff is bad for non-joinder of necessary parties?OPD

Whether the plaintiff has no cause of action to file the present suit?OPD

Relief.

Thereafter, after scanning the evidence, the trial Court came to the conclusion that the entries in the municipal record were not sufficient to prove ownership and it was incumbent upon the plaintiff to place on record the document of purchase and, therefore, an adverse inference has to be drawn against the plaintiff. It is also noticed that the plaintiff was residing in Kaithal since 1947 and, therefore, he was not in actual physical possession. Accordingly, it was held that plaintiff in order to succeed should stand on his own legs and, therefore, he had failed to prove his possession. The said issue was decided against him and by virtue of it relief of permanent injunction was also declined. Issues No. 3 to 6 were decided against the defendants being not pressed and accordingly the suit was dismissed vide judgment and decree dated 11.9.2002.

Though two civil appeals i.e. one Civil Appeal No. 5-RBT of 2005 came to be filed before the Lower Appellate Court by the plaintiff Muralidhar through his legal representatives and another Civil Appeal No. 107-RBT of 2005 was filed by defendant No. 3. The Lower Appellate Court while deciding two appeals vide judgment and decree dated 26.2.2008 took into consideration the fact that the plaintiff Muralidhar had been asked to remove the debris from the disputed plot in 1948 and the adjoining plot belonged to defendant No. 2 Bajrang and, therefore, the identity of the plot was not in question. Ex.P12 to Ex. P19 notices issued to Muralidhar to pay the tax regarding the suit property were taken into consideration and execution application of the plaintiff wherein possession was taken from Smt. Sunder pertaining to the year 1931 was also noticed. The contention of respondent No. 1 regarding adverse possession was rejected on the ground that he has failed to substantiate his possession for the last more than 12 years. The documents produced by defendant No. 3 pertaining to the mortgage deed dated 27.8.1920 Ex. D3, 6.12.1920 Ex.D4, copy of the sale deed dated 9.5.1932 and another registered deed dated 19.7.1979 were taken into consideration and rejected on the ground that they did not pertain to the disputed plot. It was, accordingly, held that the appellant Jogeshwar Nath defendant No. 3 had failed to connect the plot with the documents and even otherwise he had not filed any counter claim for ownership before the trial Court and, therefore, could not agitate this matter in appeal. Regarding the issue of ownership of the plaintiff, the same was decided in his favour on the ground that there was high degree of probability in his favour to show that the plot in question was in his possession for a long time and there was no rebuttal evidence regarding his title and defendant had no concern with the disputed plot and accordingly, injunction was granted while allowing his appeal No. 5-RBT of 2005 whereas Appeal No. 107-RBT of 2005 filed by appellant-defendant No. 3 was dismissed.

Dissatisfied with the decision of the Lower Appellate Court, the present Regular Second Appeal has been filed. Counsel for the appellant has contended that injunction has been wrongly granted to the plaintiff and his appeal should have been allowed and he should have been declared as owner of the disputed plot. The said contention is meritless inasmuch as regarding the issue of injunction the appellant has preferred not to file Regular Second Appeal against the decision of the civil appeal No. 5-RBT of 2005 wherein the injunction was granted to the plaintiff by the Lower Appellate Court and the decision has become final. Even otherwise on merits, the Lower Appellate Court has taken into consideration that the record from 1948 onwards showed that the ownership of the plot in question was of the plaintiff Muralidhar and his father and they had also been asked to pay tax regarding the suit property and even possession had been taken from the tenant Smt. Sunder. The documents set up by the present appellant-defendant No. 3 were duly considered by the Lower Appellate Court which has held that said documents do not connect with the property in question. Another important fact which is to be noticed is that though defendant No. 3 had got himself impleaded in the suit filed by the plaintiff-respondent and had contended that his father was owner by virtue of sale deed dated 28.2.1950 but no effective issue had been got framed by the defendant in this context while contesting the matter before the trial Court. The Lower Appellate Court, therefore, was correct in noticing that in the absence of counter claim before the trial Court, defendant No. 3 could not agitate the matter in appeal. Accordingly, once the said issue was not agitated before the trial Court regarding the ownership of defendant No. 3 and the trial Court only decided the issue of the ownership of plaintiff regarding the property in dispute and which has been allowed by the Lower Appellate Court and the plaintiff has been held to be owner of the property in dispute, the defendant No. 3 appellant cannot contend that he is the owner of the property in dispute. Even otherwise, the Lower Appellate Court has noticed that documents produced by the appellant-defendant No. 3 did not connect with the plot in question.

That reasoning given by the Lower Appellate Court cannot be considered to be perverse or unjustified in any manner and the said issue now cannot be raised in the Regular Second Appeal once the appellant has been remiss in conducting the proceedings before the trial Court. Accordingly, it is held that no question of law much less substantial questions of law arise for consideration by this Court in the present Regular Second Appeal, the same is dismissed and the judgment and decree of the Lower Appellate Court are upheld.