Sh. Harish Chander vs Sh. Kishori lal (deceased) through LRs.

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 06.10.2007 which had reversed the finding of the trial judge dated 21.11.2006 whereby the suit filed by the Plaintiff Harish Chander seeking possession of the suit property i.e. House No. 5323, Gali No. 67, Regarpura, Karol Bagh, New Delhi had been decreed in his favour. The impugned judgment had reversed this finding. The suit of the Plaintiff stood dismissed.

Father of the Plaintiff was the owner of the suit property. After his death, his three sons partitioned the suit property on 23.03.1979 by way of a written document in the presence of Panch; adjoining House No. 5322 was owned by the Defendant and his brother; they had also partitioned their shares. On the night of 04.01.1980, Defendant demolished his wall (shown as WZ in the site plan) with the mala fide intention to occupy the portion of the property of the Plaintiff. On 05.01.1980, he started construction; Plaintiff filed the suit for injunction; suit was later on withdrawn. Defendant had succeeded in occupying illegally and unauthorizedly a portion of the property of the Plaintiff. Suit had accordingly been filed.

In defense, the Defendant raised various objections. On merits, the stand of the Plaintiff was denied. It was denied that the Defendant had tried to usurp or malafidely taken the share of the Plaintiff.

On the pleadings of the parties, the following seven issues were framed:

Whether the suit is not properly valued for purposes of Court-fee and jurisdiction? OPD.

Whether the suit is barred by limitation. If the Plaintiff is not in possession of the land in dispute for the last 12 yrs? OPD.

Whether the suit is bad for non-joinder of Parties? OPD.

Whether the suit is barred by resjudicata as given in Para 5 of the Preliminary Objection of Written Statement? OPD.

Whether the Plaintiff is the owner of the land in dispute? OPP

Whether the Plaintiff is entitled for relief of Possession of the suit land? OPP

Relief.

Issue No. 1 stood decided on 25.08.2000.

Oral and documentary evidence was led by the respective parties. Court was of the view that the Defendant has, in fact, usurped the portion of the property of the Plaintiff and this was evident from the site plan from the Ex. PW 1 /4 and Ex. PW 2/2. Suit of the Plaintiff was decreed.

In appeal, the impugned judgment had set aside this finding. The suit of the Plaintiff stood dismissed. The court was of the view that the testimony of DW-1 was illegally rejected; the partition deed executed between the Plaintiff and his two brothers had been proved as Ex. PW 1/3; share of Sh. Narain Singh was 30 ft. x 7 1/4 ft; the share of Sh. Gautam Singh was 30 ft. x 7 1/4 ft. thereby totaling 30 ft. x 14 1/2 ft whereas the share falling to the Plaintiff comprised of 15 ft. x 14 1/2 ft. Total area of plot was more than 72.5 sq. yards. No explanation had been given by the Plaintiff as to how this plot exceeded 71 sq. yds. The onus was upon the Plaintiff to proof his case which he had failed to prove. Suit was dismissed.

This is a second appeal. It had been admitted and on 21.12.2010, the following substantial question of law had been formulated:

Whether the findings in the impugned judgment dated 06.10.2007 are perverse and if so its effect?

On behalf of the Appellant it has been urged that the finding of the trial court is illegal; the lease deed Ex.PW-1/1 had clearly stated that the land which had been leased out to the father of the Plaintiff was 75 sq. yards; the impugned judgment returning a finding to the contrary holding the land to be less is a perversity. It is pointed out that the site plan Ex.PW-1/4 also evidences the stand of the Plaintiff; all plots in the colony were in rectangular shape; the portion shows in red in Ex.PW-1/4 clearly evidences an encroachment into this rectangular plot. These facts have not been appreciated correctly judgment suffers from a perversity.

Trial judge had returned a finding in favour of the Plaintiff and had decreed the suit of the Plaintiff. Impugned judgment had reversed it and relied upon the relevant document Ex.PW-1/5 which was the plaint filed by the Plaintiff herein in an earlier suit for permanent injunction wherein he had described the suit property i.e. Plot No. 5323 having an area of 71 sq. yards. This has not been disputed even before this Court. Submission before this Court is that area of 71 sq. yards described in Ex.PW-1/5 was an error; it was wrongly detailed as 71 sq. yards by an earlier counsel. This argument has no merit and has to be noted only to be rejected. The case of the Plaintiff as is evident from Ex.PW-1/5 is that the plot in question is 75 sq. yards. Ex.PW-1/3 was the partition deed partitioning the suit property between three brothers namely Plaintiff Harish Chander and his other two brothers Gautam Singh and Narain Singh. As per Ex.PW-1/3 Gautam Singh had received a share of plot measuring 30 x 71/4 sq.feet, Narain Singh had also received a similar share of plot measuring 30 x 71/4 sq.feet; the share of the Plaintiff Harish Chander was 15x 141/2 sq. feet. Converting the aforenoted figures into square yards the total area of the plot comes to more than 72.5 sq. yards. Plaintiff even before this Court has no explanation as to how the plot land exceeded 71 sq. yards which is area averred in Ex.PW-1/5.

The onus is on a party who come to court for relief to prove it. Plaintiff had come to the court seeking a relief that the Defendant had encroached upon his land; he should be granted possession of the said suit land. His averments as noted supra were contrary. Ex.PW-1/3 evidenced that the plot area divided amongst three brothers was more than 72.5 sq. yards; whereas as per the version of the Plaintiff (as is evident in Ex.PW-1/5) the area was 71 sq. yards. There is no explanation for the same. Suit was dismissed. These averments had been rightly recorded in the impugned judgment. It suffers from no infirmity much less perversity.

Substantial question of law is answered against the Appellant and in favour of the Respondent. There is no merit in the appeal. Dismissed.