Parbatti vs Rulia Ram @ Nafe

R.L. Anand, J.—Unsuccessful plaintiffs have filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 11.4.1979 passed by the Court of learned Additional District Judge, Rohtak, who accepted the appeal of the defendant-respondent by setting aside the judgment and decree-dated 31.7.1978 passed by the learned Trial Court i.e. Sub Judge III Class, Rohtak.

Brief facts of the case are that Smt. Parbatti and Nihal Chand alias Baldev Raj plaintiffs filed a suit for possession of one Kotha shown with green colour in the site plan attached with the plaint and denoted by letters ''EFGH'' situated in Qilla Mohalla, Rohtak and the case set up by the plaintiffs was that they had purchased in equal share a plot of land fully described in para No. 1 of the plaint measuring 175 square yards from one Roshan Lal son of Ram Sarup for a consideration of Rs. 4,000/vide two registered sale deeds dated 19.7.1971. Thereafter, they constructed a kotha, in December, 1971, denoted by letters ''EFGH'' as shown in the site plan. Defendant Rulia Ram is the grandson in relationship of plaintiff No. 1 Smt. Parbatti and he took the Kotha on licence from the plaintiffs for a short term of three months on 1.1.1972 in order to spend winter season as the defendant was in urgent need of the accommodation. This request of the defendant was accepted by the plaintiffs and the defendant was given the possession of the Kotha as a licensee, but he has refused to vacate the same on demand; hence the suit on the basis of title.

Notice of the suit was given to the defendant Rulia Ram who contested the suit and stated that Roshan Lal or anybody else was never owner in possession of the site in dispute which is the part and parcel of abadi deh of Rohtak and the defendant is in possession of the Kotha since his fore-fathers and is continuously enjoying the possession as owner by way of prescription. The alleged purchase, if any, in favour of the plaintiffs is fictitious and has been created just to defeat the title and long possession of defendant. Neither the plaintiffs nor anybody else can create valid title in respect of the site in dispute. The plaintiffs have no concern with the site in question. They have no locus standi to file the suit. There is no relationship of the defendant with plaintiff No. 1 as alleged in the plaint. With the above pleadings, the defendant prayed for the dismissal of the suit.

The plaintiffs filed replication to the written statement in which they re iterated their allegations made in the plaint while denying those in the written statement and from the above concise pleadings of the parties, the following issues were framed by the trial Court :

(1) Whether the plaintiffs are owners in possession of the plot in dispute ? OPP.

(2) Whether the defendant has become owner by way of prescription ? OPD.

(3) Whether the sale deed dated 19.7.1971 is bogus and fictitious transaction ? OPD.

(4) Whether the plaintiffs have constructed one Kotha on the impugned plot in December, 1971 ?

(5) Whether the defendant took the kotha on licence on 1.1.1972 ? OPP.

(6) Relief

Both the parties led oral and documentary evidence in support of their case and on conclusion of the trial, the learned trial Court recorded the findings on issue No. 1 in favour of the plaintiffs and against the defendant. Issue No. 2 was decided against the defendant. Similarly, issue No. 3 was also decided against the defendant. Issues No. 4 and 5 were decided in favour of the plaintiffs and finally the suit for possession was decreed on 31.7.1978.

Rulia Ram defendant was aggrieved by the judgment and decree of the trial Court and filed the appeal in the Court of Additional District Judge, Rohtak, who vide impugned judgment and decree dated 1.4.1979 set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs.

While decreeing the suit, trial Court held in para No. 10 of the judgment as follows:

"From the above analysis of oral and documentary evidence of the parties made available on file, I am of the opinion, that the plaintiffs'' documentary evidence is consistently supported by the oral evidence and in this light the defendant''s oral evidence does not stand the scrutiny and as such I hold that the plaintiffs are successful to establish on file that they are owners in possession of the plot. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant".

The first Appellate Court held in para No. 10 of its judgment as follows while accepting the appeal:

"For the reasons recorded it appears to me that the learned trial Judge had al lowed himself to be misled on account of the misreading of the documents which he held to be the basis of the title of the plaintiffs. In these, circumstances, the appeal merits acceptance; therefore, I accept the appeal, set aside the impugned judgment and decree and dismiss the suit of the plaintiffs with costs".

I am disposing this appeal with the assistance of the learned counsel for the appellant who has led me to go through the record of this case.

I have already reproduced the observations both of the Trial Court as well as the first Appellate Court and from this safe conclusion can be drawn that plaintiffs have been non-suited on the ground that they did not acquire any title as alleged vide sale deeds dated 19.7.1991 allegedly executed by Roshan Lal.

The findings of this Court on issue No. 1 would be very material. The case of the plaintiffs in the Trial Court was specific that they had purchased the site in dispute vide sale deeds dated 19.7.1991 Ex. P.W. 8/1 and Ex. P.W. 8/2. Ex. P.W. 8/1 is the site plan which was attached with the plaint at the time of the filing of the suit and a perusal of the same would show that the plaintiffs have shown main road in the east and house of Chandgi Ram son of Chhajju Ram in the west. Towards north a gali has been Shown and on the south the building of Ghan Sham Dass Soap Factory has been demarcated. The disputed Kotha denoted by letters ''EFGH'' measuring 12'' x 11'' x 10-1/2'', has been shown in one corner of the aforesaid plot. The plaintiffs can succeed only if they establish their title with regard to the plot in question on the basis of the two sale deeds referred to above. A perusal of the above said sale deed would show that towards east a vacant plot and road has been shown, towards west the house of Chandgi Ram has been shown, towards north a lane and towards south Ahata and factory of Ghansham Dass has been demarcated. Thus I find that there is no discrepancy with regard to the boundaries of the plot in dispute as pointed out by the first Appellate Court. In this regard it will be useful for me to refer to the oral evidence which has been led by the plaintiffs in order to establish the identity and ownership of the property. P.W. 3 is Kashmiri Lal who proved the site plan Ex. P.W. 3/1 as it was prepared by him. P.W. 4 is Roshan Lal who earlier purchased the suit property along with adjoining land from one Bona Ram for a sum of Rs. 4,000/. The witness has also stated that original sale deed has been lost and he proved the certified copy which is Exhibit PW. 4/1 on the record. Jogi Ram P.W. 5 has also deposed that the kotha in dispute was constructed by Bona Ram who is the husband of plaintiff No. 1 Parbatti and he had seen him constructing the Kotha Further, it has come in the statement of this witness that the kotha in dispute was constructed by Jhauduria Ram @ Bonna Ram and his wife Smt. Parbatti. Further it has been stated by this witness that Bonna Ram is the grandfather of defendant and for this reason, the defendant started residing in it with the permission of the plain tiff. P.W, 6 is Bonna Ram husband of plaintiff No. 1 and had also stated that he had taken the suit land in exchange from one Hardwari Lal and this land was sold by him to one Roshan Lal in the year 1968 and then Roshan Lal resold the same in favour of Smt. Parbatti and Nihal Chand and a kotha. was constructed by Parbatti and it was given m licence to defendant. Roshan Lal P.W. 7 has stated that he sold the site in dispute over which the kotha has been constructed and it was purchased by the plaintiffs through two sale deeds for a sum of Rs. 2,000/- each. He has also categorically deposed that plaintiff No. 1 Parbatti had constructed the kotha. Shankar Dass P.W. 8 is the Petition Writer who scribed the sale deeds Ex. P.W.8/1 and Ex. P.W. 8/2. Mange Ram stated that in the beginning this property was of one Hardwari Lal who had taken it from one Chandgi Ram and Chandgi Ram had taken through court auction. In this manner, the identity of the property in dispute has been successfully proved by the plaintiffs not only by oral evidence but also by documentary evidence. As against this, the stand of the defendant throughout was that he was in possession of this property since his forefathers and he has become the owner of the same by way of prescription/adverse possession. But there is no satisfactory or oral evidence to establish the continuous possession of the defendant or that the defendant constructed the kotha in dispute. The evidence of the defendant is quite shaky and has even been admitted by the first Appellate Court when it remarked in para No. 9 of the judgment that "the evidence of the defendant was in deed defective inassuch as DW-1 stated that kotha was constructed by the grandfather of the defendant; whereas D.W. 2 Raghbir Singh stated that father of the defendant has been residing in this kotha prior to the defendant." The first appellate Court also held that "the witnesses of the defendant might have tried to exaggerate the onus with regard to the age of the construction and the alleged long possession of the defendant". The first Appellate Court had non suited the plaintiffs mainly on the ground that they have not been able to establish the identity and the boundaries of the property and that the plaintiffs cannot bank upon the weakness of the defendant. I have already highlighted above about the various transfer transactions of the plot in question and in what manner the plaintiffs became the owner of the property. The chain of transactions is complete. The main documents i.e. two sale deeds if interpreted in the light of the oral statements, there is no manner of doubt that plaintiffs finally purchased this land in dispute from Roshan Lal vide two sale deeds each measuring 87-1/2 sq. yards on 19.7.1971 and thereafter the kotha was constructed. Once the possession of the defendant has been shown as unauthorised or under a licence he is bound to restore it to the plaintiffs. The plaintiffs were not banking upon the weakness of the defendant. Rather they have proved their title by preponderance of evidence oral as well as documentary. The first Appellate Court has not rightly appreciated the volume of the evidence led by the plaintiffs to prove the title of the plot in dispute over which they constructed the kotha and which was given on licence to the defendant.

For the reasons referred to above, I reverse the findings of the first Appellate Court on issue No. 1 and hold that the plaintiffs were the owners of the plot in dispute. The findings of the learned first Appellate Court on issue Nos. 2, 3, 4 and 5 are also reversed and it is held that the defendant did not become the owner of the kotha in dispute by prescription and that the sale deeds 19.7.1971 were not bogus and fictitious. I further hold that the plaintiffs who actually constructed the kotha over the plot in dispute and that the kotha was given on licence to the defendant and that the possession of the defendant was permissive and he is hound to restore the same to the plaintiffs.

Resultantly, the present appeal is allowed and the judgment and decree of the first Appellate Court dated 11.4.1979 is hereby set aside and that of the trial Court is restored and the suit of the plaintiffs for possession is hereby decreed as prayed for leaving the parties to bear their own costs.