Kishori vs Bharta and Others

Rajive Bhalla, J.

The plaintiff-appellant challenges judgment and decree dated 03.10.1988 passed by Additional District Judge, Faridabad, accepting the appeal filed by the defendant- respondents and as a consequence, setting aside the judgment and decree for permanent injunction passed by the Additional Senior Sub Judge, Palwal.

Counsel for the appellants submits that the property, in dispute, is a `gitwar'' situated within the abadi deh. As revenue authorities do not demarcate land or maintain record of ownership/possession of land within abadi deh, ownership of such land generally follows possession. The only evidence that can be led in the case of property situated within the abadi deh, is oral evidence. The trial court appreciated the oral evidence and held that the appellant is a co-sharer. The first appellate court has committed an error in reversing this finding. The first appellate court was required to appreciate the oral evidence as well as a judgment recorded in 1952 but has refused to record an opinion on the question of ownership by holding that the question of ownership is irrelevant thereby committing an error of jurisdiction. Counsel for the appellants submits that the following question of law arises for adjudication:-

Whether the first appellate court has not committed an error of jurisdiction in reversing the judgment and decree passed by the trial court holding that the appellant is a co-sharer?

Counsel for the respondents, on the other hand, submits that the plaintiff-appellant has not adduced any documentary evidence, much less credible oral evidence to prove his ownership or possession. The oral evidence is not only contradictory but also vague. The fact that revenue authorities do not record entries with respect to property within abadi deh, did not absolve the appellant from adducing clear and cogent evidence of ownership and possession. Even otherwise, the question of ownership was not germane to the controversy. The first appellate court has rightly set aside the finding of ownership recorded by the trial court.

Counsel for the parties have been heard, the impugned judgments and decrees and the relevant record have been appraised.

The plaintiff-appellant filed a suit for a permanent injunction to restrain the defendant-respondents from interfering in his possession over a `gitwar'' situated within the abadi deh of village Dudhola, tehsil Palwal, described in detail, in the plaint. The plaintiff-appellant pleaded that he is owner in exclusive possession as the `gitwar'' is his ancestral property having devolved, from his father Chandi. The gitwar is used for tethering of cattle, storage of fodder and cow dung cakes. The plaintiff-appellant also asserted that he had collected bricks, stone slabs etc. for raising construction, but the respondent- defendants have begun interfering in his possession. It is also pleaded that the respondent-defendants had filed a civil suit for a permanent injunction to restrain the appellant from raising any construction on the property in dispute on 28.8.1980, but the suit was dismissed in default on 6.5.1982.

The respondent-defendants filed a written statement admitting the previous suit and its fate but denied that the appellant is owner or in possession of the disputed plot. The respondents pleaded that the `gitwar'', in dispute, is their ancestral property. The plaintiff had made an attempt to take forcibly possession of the plot which resulted into both parties being challaned by the police. The litigation concluded by holding that the plot, in dispute, is in possession of the respondents.

The plaintiff-appellant filed a replication controverting averments in the written statement and reiterating averments in the plaint.

After considering the pleadings, the trial court framed the following issues:-

" 1. Whether the plaintiff is the owner in possession of the disputed property? OPP

Whether the property in dispute is the ancestral property of the plaintiff, as alleged? OPP

Whether the plaintiff has no locus standi to file the present suit? OPD

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

Whether the plaintiff is not the owner in possession of the suit property as alleged? OPD

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

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

Whether the defendants are entitled to special costs u/s 35-A? OPD

Relief.

The trial court thereafter called upon parties to lead evidence and after considering the pleadings and the evidence, held that the plaintiff-appellant is co-owner in possession of the plot in dispute to the extent of 1/2 share, but declined to grant an injunction on the ground that parties are co-sharers and, therefore, dismissed the suit.

Aggrieved by the finding that the appellant is a co- sharer, the defendants/respondents filed an appeal. The Additional District Judge, Faridabad, vide judgment and decree dated 3.10.1988, accepted the appeal and set aside the finding of co-ownership. The first appellate court held that as the trial court had itself recorded a finding that it is difficult to arrive at a conclusion about possession or ownership, it is rather surprising that the trial court has proceeded to rely upon an alleged admission by DW1 Rewati, a witness, to hold that as boundaries of the disputed plot and the plot, subject matter of judgment dated 02.4.1952, Ex.P5, tally, the parties are co- owners. The first appellate court also held that respondents are not bound by the statement made by their witness. The first appellate court also held that the question of ownership was not germane to decision of this simpliciter suit for a permanent injunction and as the trial court had itself expressed difficulty in deciding the question of ownership. A relevant extract from the impugned judgment reads as follows:-

"8 The learned trial court appeared to have aberrated in its approach while delving deep into that question. The material available and obtaining on record was not sufficient to come to any definite conclusion on the complicated issue of ownership. That proposition clearly followed from the observation made by the learned Addl. Senior Sub Judge, in the following excerpts from his judgment:

"Both the parties claimed that this was their ancestral property having devolved upon them from their fore-fathers. There is no title deed coming on the file from either side."

XX XX XX

" There is nothing on the file which is suggestive of the fact that the plot in dispute belongs to a particular party."

XX XX XX

" From this oral evidence of both the parties, it is very difficult to reach any conclusion regarding the possession as well as ownership of plot in dispute."

It was not at all conceivable as to how the learned trial court despite these observations made by it proceeded to jump at the conclusion that the plot was jointly owned by the parties. There was certainly no jurisdiction for the learned trial court to base that finding on a certain fact appearing in the deposition of Rewati (DW1), examined on behalf of defendants what at best could be inferred from the statement of that witness (DW1) was that the boundaries of the plot in suit tallied with those of the plot owned by a person named Tota, whose estate had been inherited after his (Tota) death by his son Duli. Some course of earlier litigation between the plaintiff and defendants No. 1 &2 as evidenced by copy of judgment dated 2.4.52 (Ex.P5), was not, and could not be made basis for an inference that the persons locked in litigation are descendants of Tota and that they have inherited rights in the suit plot as such. There was certainly no legitimacy in that reasoning adopted by the learned trial court while dwelling on that aspect of the case.

It was rightly canvassed by learned counsel for the defendants-appellants, on the authority of observations made in Dalal Din and another Vs. Nawab and others A.I.R.1941 Lahore 55 that they (defendant) were not at all bound by some such statement made by their witness Rewati (DW.1.). Be that as it may, that has certainly no relevance or significance for resolving the dispute in hand.

It was not also within the province of learned trial court to travel beyond pleadings. Neither party to the proceedings had set up the plea of joint ownership.

"12. Thus, judging and viewing the matter from all angles, the finding of learned trial court on the point of ownership is held to be nugatory as well as ill- founded. Such a question could naturally be gone into in claims flowing from title. That was certainly out of context and having no bearing on the merits or demerits of present controversy."

A perusal of the above extract reveals that the first appellate court has recorded clear and cogent reasons for setting aside the finding that parties are co-sharers. Apart from the fact that the appellants did not raise a plea of co-ownership, the trial court having expressed difficulty in deciding the question of ownership and possession and declined the prayer for an injunction based upon possession, could not have proceeded to declare, on the same evidence that parties are co- sharers. A perusal of the evidence on record reveals that apart from asserting an act of tethering cattle, storing of cow dung cakes and unloading of bricks, the appellant has not been able to produce any cogent evidence to prove settled possession. The act of tethering of cattle, storing of cow dung cakes is a mere act of user that does translate into a right of ownership or settled possession. The question of ownership, as held by the first appellate court, was also neither germane nor necessary for adjudication of the prayer for grant of an injunction and as neither party produced clear and cogent evidence of ownership, the first appellate court rightly reversed the finding recorded by the trial court on the question of ownership, leaving the question of ownership open. The judgment (Ex.P5) was rightly rejected for want of evidence to prove that boundaries tally.

The first appellate court having referred to and appraised all relevant facts, the impugned judgment does not suffer from any error of jurisdiction or of law. The question of law is, therefore, answered against the appellants. The appeal is dismissed with liberty to parties to establish their ownership and thereafter proceed in accordance with law. No orders as to costs.