Lakhbir Singh and Others vs Ajmer Singh

L.N. Mittal, J.—By this common judgment, I am disposing of two regular second appeals i.e. RSA No. 1790 of 2010 and RSA No. 1791 of 2010, both titled Lakhbir Singh and others versus Ajmer Singh. These appeals have arisen out of two suits-one instituted by respondent-plaintiff Ajmer Singh and the other instituted by his father Gulwant Singh (since deceased and represented by Ajmer Singh respondent as his legal representative). Both suits were decreed by the trial court vide common judgment and decrees dated 6.9.2006. Both first appeals preferred by defendants in the two suits were also dismissed by common judgment and decrees dated 11.5.2009 by the lower appellate court. Feeling aggrieved, the defendants have filed these two second appeals. Plaintiffs in both the suits claimed to be owners of the respective suit property. Ajmer Singh plaintiff pleaded that he inherited the suit property from Amar Singh son of Bishan Singh who was owner thereof and who executed Will dated 19.12.1977 in favour of the plaintiff. Gulwant Singh pleaded that he is owner of the suit property involved in his suit. Both the plaintiffs pleaded that on 20.5.1997, defendants inflicted injuries to plaintiff Ajmer Singh and to Major Singh son-in-law of plaintiff Gulwant Singh and forcibly and illegally occupied the suit property of both the suits. Accordingly, the plaintiffs sought possession of respective suit property of both the suits.

The defendants resisted the suits and denied the averments of the plaintiffs. It was pleaded that defendants are owners in possession of both the suit properties since the time of their ancestors. Suit property bears khasra number and is part of residential house of the defendants. It was denied that Amar Singh was owner of the suit property pleaded in the suit of Ajmer Singh and that Gulwant Singh was owner of the property of his suit. Various other pleas were also raised.

I have heard counsel for the parties and perused the case files including files of the courts below with their assistance.

Counsel for the appellants contended that there is no cogent evidence to prove that either plaintiff was owner of the suit property. It was contended that there is no evidence to prove that Amar Singh predecessor-in-interest of Ajmer Singh was owner of the suit property of that suit or that Gulwant Singh was owner of the suit property of his suit.

On the other hand, counsel for the respondent contended that statement of Ajmer Singh as PW6 that Amar Singh was owner of the suit property of his suit stands un-challenged in cross-examination and is, therefore, deemed to have been admitted.

I have carefully considered the rival contentions.

Following substantial question of law arises for adjudication in both these second appeals:-

Whether finding of the courts below on issue no. 1 in each suit is perverse and illegal and is based on misreading and mis-appreciation of the evidence on record?

Ajmer Singh plaintiff (PW6) was cross-examined at length and it cannot be said that his statement in examination-in-chief that Amar Singh was owner in possession of the suit property was not challenged in cross-examination. In fact specific suggestion has been given to plaintiff in cross-examination that defendants are owners as well as in possession of the suit property. It was also suggested that plaintiff Ajmer Singh never remained in possession thereof. He could not even tell the measurements of the suit property. He also did not know if the suit property bears any khasra number or not. He also did not know whether property adjoining the suit property bears any khasra number or not. The plaintiff stated that he had obtained record of the suit property from the Patwari Halqa who maintains record of the property bearing khasra numbers. However, the suit was snot filed on the basis of the said record as admitted by the plaintiff. Thus, testimony of plaintiff Ajmer Singh was completely shaken in cross-examination. He has practically admitted the version of the defendants that the suit property bears khasra number. Withholding of revenue record pertaining to the khasra number of suit property gives rise to strong presumption against the plaintiff. He could not even tell the measurements of the suit property depicting that he never remained in possession thereof much less its owner. There is no documentary evidence to prove ownership of plaintiff Ajmer Singh or his predecessor-in-interest Amar Singh over the suit property or to prove ownership of plaintiff Gulwant Singh over the suit property of his suit. Onus was on the plaintiffs to prove their ownership over the respective suit properties. They have miserably failed to discharge the said onus. Moreover, oral evidence led by the plaintiffs stands rebutted by oral evidence of defendants.

Contention of counsel for the plaintiff-respondent that there is no specific issue regarding ownership of Amar Singh over the suit property in the suit filed by Ajmer Singh or regarding ownership of plaintiff Gulwant Singh over the suit property of his suit, carries no weight because in both suits identical issue no. 1 has been framed which is reproduced hereunder:-

Whether the plaintiff is entitled for possession of the suit property as prayed for? OPP.

This issue covers entire plea of the plaintiffs regarding their ownership over the respective suit property which they were required to prove so as to claim relief of possession thereof. In fact ownership of respective suit property was the only fact to be proved by the plaintiffs to entitle them to claim possession thereof. However, they have failed to prove the same.

For the reasons aforesaid, I find that plaintiffs have miserably failed to prove their ownership over the respective suit properties and consequently, they are not entitled to relief of possession of the respective suit properties. Finding of the courts below to the contrary is completely perverse and illegal and is based on misreading and mis-appreciation of the evidence on record and therefore, cannot be sustained.

Resultantly, both the instant second appeals are allowed. Judgments and decrees of both the courts below passed in both the suits are set aside and both the suits stand dismissed. The parties are, however, left to bear their respective costs throughout. Pending civil miscellaneous applications are disposed of as having been rendered infructuous.