Shanti Devi and Others vs Dhanwanti and Others

R.L. Anand, J.—The legal heirs of unsuccessful plaintiff Kasturi Lal have filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 25.10.1979 passed by Additional District Judge, Ambala, who set aside the judgment and decree dated 30.9.1978 passed by Sub Judge, IInd Class, Jagadhri, who decreed the suit of the legal heirs of Kasturi Lal

The pleadings of the parties can be summarised in the following manner:-

Kasturi Lal filed a suit for possession regarding land measuring 875 square feet bearing Plot No. 229 fully described in the head-note of the plaint situated in Laxmi Garden Colony, Yamuna Nagar and sought mandatory injunction directing the defendants Smt. Dhanwanti and Panjab Singh remove the blockage put up by them in the road adjoining to the land in dispute on its southern side through which lies the passage of the plaintiff. The case set up by the plaintiff in the trial Court was that Kasturi Lal plaintiff was the owner of Plot No. 229 measuring 875 square feet. He purchased this plot vide sale deed dated 23.11.1959. The plaintiff has erected brick mark pillars on the four corners of the said plot. The defendants in the month of September, 1970 encroached upon the suit land measuring 875 square feet being southern part of the said plot without any right and they also encroached upon the road adjoining towards southern side of the said plot. The plaintiff has his passage through the said road also and so he has a right to file the suit in respect of the blocked road. The defendants at the first instance kept on putting off the matter but ultimately refused to hand over the possession of the suit land to the plaintiff and to clear the blocked road.

Notice of the suit was given to the defendants, who filed the written statement and denied the allegations of the plaint. They pleaded that defendant No. 2 Panjab Singh purchased Plot Nos. 230 to 233 in the name of his wife Smt. Dhanwanti, defendant No. 1 in the year 1958 and immediately thereafter a room was constructed in the corner of Plot No. 230 and the remaining area of the said plot was enclosed by boundary walls and since then the defendants are in possession of the land and they had not encroached upon any land of the plaintiff in the year 1970. The land in possession of the defendant does not form part of plot No. 229 or any part of the road. In fact, one Pran Nath has encroached upon the plot No. 229. Certain Preliminary objections were taken by the defendant that the suit is not property valued for the purposes of Court fee and jurisdiction; that the plaintiff has no cause of action against the defendants and that the suit is time barred.

The plaintiff field replication reiterating the averments made in the plaint and denied those of the written statement.

During the pendency of the suit Kasturi Lal plaintiff died and the present appellants became the legal heirs of said Kasturi Lal.

From the pleadings of the parties, the trial court framed the following issues:-

Whether the plaintiff is owner of Plot No. 299 measuring 1/5 sq. yards? OPP

Whether the defendants have encroached upon any portion of his plot as alleged in the plaint? OPP

If issue Nos. 1 and 2 are proved, whether the plaintiff has no cause of action against the defendants and the suit is not maintainable? OPD

Whether the suit is time barred? OPD

Whether the suit has been properly valued for the purposes of Court-fee and jurisdiction? OPP

Whether the plaint has not been properly verified? If so, to what effect? OPD

Whether the defendants have blocked the road?

Relief.

The parties led oral and documentary evidence in support of their respective cases and on the conclusion of the trial issue No. 1 was decided in favour of the plaintiff by holding that he is the owner of one plot No. 229, Issue No. 2 was also decided in favour of the plaintiff. Issues Nos. 3, 4 and 6 were decided against the defendants, while issues Nos. 5 and 7 were decided in favour of the plaintiff. Resultantly, the suit of the plaintiff was decreed.

Aggrieved by the judgment and decree of the trial Court, the defendants filed the appeal before the first Appellate Court and vide judgment and decree dated 25.10.1979 passed by the court of Additional District Judge, Ambala, the judgment and decree of the trial court was set aside and the suit of the L.Rs. of the plaintiff was dismissed by holding that the defendants never encroached upon any part of plot No. 229 which was purchased by Kasturi Lal and this time the L.Rs. of Kasturi Lal plaintiff have filed the resent Regular Second Appeal.

I have head Mr. R.S. Cheema, Senior Advocate, on behalf of the appellants. No assistance has been provided from the side of the respondents. I have gone through the records of this case and the impugned judgment also.

As I have stated above that the appellants were non-suited by the first Appellate court under issue No. 2 when it was held that the defendants have not encroached upon any portion of plot bearing No. 229. Before I deal with the evidence which has been recorded by the trial...... colony has a passage. The appellants claimed that this plot No. 229 has been usurped by the owner of Plot No. 220 and the site claimed by the respondents was in fact the plots No. 232 and 233.

"6. Now so as to appreciate this point as to if there is actually any encroachment, the finding of issue No. 2 is the only finding which is in dispute in the real sense. In nutshell the evidence led by the parties may be referred to. The respondents produced P.W.I Ghansham Dass Sharma who is the owner of Plot No. 1299 in the said colony. He stated that he constructed his own house in 1972 and at the time a house had already been constructed by one Pran Nath owner of Plot No. 220. He stated that towards the South of the house of Pran Nath there was a shop which was constructed in the midst of the road. So he did not say any anything as to who had constructed the shop in the middle of the road. He changed his version that there was a vacant site in the South of the house of Pran Nath. If this version is believed then the case of the respondents is demolished all together because this would infer that Pran Nath had constructed the house in Plot No. 229 and not in plot No. 220 as per lay out plan Ex.PA. In cross-examination this witness has clarified the position that there a house of one Hardevi bearing No. 218 opposite to plot Nos. 220 and 229 and there is a triangular building just opposite to house No. 229 in the West. Towards the further West of the triangular shaped house, there is a Chandpur road. He has not stated anything as regards the possession of plots No. 232-233 nor about the dispossession of Kasturi Lal. PW4 Satnam Singh is the owner of plot No. 234. He himself, is not a party to the suit and he did not say anything as to if what is the position of his own plot, if plot No. 232 and 233 have been usurped what has happened to his plot. However, he stated that there is a road towards the North of the plot No. 230 to 233. This is the case of the appellants also. PW5 is Pran Nath the owner of Plot No. 220. His statement is most important in the entire case. He has conceded the fact that he constructed his own house in 1969 and the truth come out of his statement that plot No. 229 belongs to him. In fact he has encroached upon plot No. 229 and has built on the said plot instead of building on plot No. 220. He also tried to contradict his stand by saying that nothing has been constructed on plot No. 229. If it had been the position then there was necessity for the respondents having brought a suit. I need not go into the details as vide judgment Ex.D6., it has been proved that Pran Nath this witness has encroached upon Plot No. 229 instead of having constructed on his own plot No. 220. PW6 Shiv Dutt has deposed on oath that there has been a vacant land in plot No. 220 and 223 which is against the lay out plan Ex.PA. He even did not know what was in the East of plot No. 229. It may be mentioned again that he has no knowledge as to what was initially the site and location of plot No. 230 to 233. PW7 is Ghansham Dass. He has admitted that towards the south of plot 220 which belong to Pran Nath there is vacant plot No. 229 belonging to Kasturi Lal. This again supports judgment Ex.D6. In cross-examination he admitted that he did not know as to what was the width of the street towards the South of the plot in dispute. PW8 is Krishan Lal is clerk Sales-tax. He is not much concerned with the actual point in issue. PW9 is Des Raj. He had also obtained a plot in the said colony. He stated about the ownership of plot No. 229 about which there is absolutely no dispute. He has not stated about the location of plot No. 230 to 233. He admitted in cross-examination that 10-12 houses have been constructed in the vicinity of the plot in question, but he did not know who had constructed those houses. He has stated that the appellant had forcibly taken possession of the site. This statement is a sort of bald statement uncorroborated by any tangible evidence. PW10 is Takki Mohd. and according to him, half of the plot is dispute is in possession of Kasturi Lal and the remaining half is in possession of the appellant Panjab Singh. He has also clarified that towards the South of the plot in dispute, there is a street and nothing has been constructed in that street. PW 11 is Kabul Singh and he was a prospective purchaser of plot No. 229 and he was shown a plot No. 229 in the south of which a road had been shown. No doubt, this witness relates to the location of plot No. 229 at a place on the south of which there is a public street or a road carved out when the colony was made out, but this version does not go against the appellant. He also stated that Panjab Singh had taken possession of the vacant site i.e. the road on the south of the plot No. 229. PW12 is Kasturi Lal, the deceased predecessor-in-interest of the respondents and he has stated that he owned plot No. 229 about which there had been no dispute. He also deposed that the had taken possession of the plot. When had he taken possession actually, he did not explain. In cross-examination he has stated that he had taken possession of the plot in dispute according to the lay out plan. He admitted that towards the North of his plot there was a plot of Pran Nath. He did not know if the plot No. 229 was a triangular shaped or not. He also admitted that towards the South of the road there were plots No. 230 to 234. He even did not know that towards the West of these plots there was a triangular shaped plot. He then stated another important fact that towards the North as well as south of the plots which are in the row of plots No. 229, there are doors. It is also against the lay bout plan.

So the evidence led by the respondents on the basis of which a relief has been granted to the respondents has been referred to by the learned trial court in its para No. 9 of the copy of judgment and the conclusion has been based on the testimony of the witnesses referred to above, and it was observed that the discrepancies in the statements of the witnesses regarding the location and direction told by the witnesses there was immaterial and that the certain pillars affixed there demarcated the boundaries of plot No. 229 and the evidence was enough to sustain a conclusion set up in the plaint. As already indicated above, that most of the witnesses did not have any personal knowledge about the deceased Kasturi Lal having taken possession of the plot and its location. Kasturi Lal himself did not know that there was any door in the plot No. 229 towards the North. He did not know the material point and pleaded ignorance on material question of facts, nor was there any evidence to show that the appellant had encroached upon the plot No. 229 or a part of the land. So their testimony did not lead the case of the respondents anywhere whatsoever. It is settled that plot No. 229 was encroached upon by Pran Nath taking it to be plot No. 220. Now looking to the position of the evidence led by the appellants. A large number of witnesses were produced. DW2 is Harbhajan Singh and he deposed that he had constructed the foundations on the site which was a part of plot No. 322 and 233. The learned trial court has observed that the statement of the witness was contradictory to his previous statement Ex.P4, but there is no such statement on record. DW2 Som Nath proved about the ownership of the plots of the appellants which are numbered as 232 and 233. DW4 is Sat Pal and he has deposed on oath that towards the North of plot No. 230 there is road. He also stated that there has been a road in between plot constructed by Pran Nath and plot Nos. 232 and 233 which is a fact according to lay out plan. DW5 is Ram Kishan and he stated that the shop is constructed on the corner of plot No. 230 and he himself was a tenant in that shop. DW7 is Narinder Pal and he also remained a tenant of the appellants. He had also proved the rent note copy of which was Ex.D2. DW8 is Umesh Mittal a draftsmen and he supported the claim of the appellants. The learned trial Court observed that he was a self styled draftsmen. Though he did not have a qualification of a draftsman but he had been the person who conducted the measurements oh the spot and his statement could not be disbelieved on the point of location of the site in dispute merely because he did not posses any degree of a qualified Draftsman. The most important statement is of DW 11 Panjab Singh, one of the appellants and according to him, if the site shown to be encroachment on the public road is not allowed to be owned by him, the row of house No. 230 to 233 would be completely wiped off from the colony all together. There is no answer to this on behalf of the respondents. So in my view, the evidence put forth by the appellants is not hearsay or unreliable, rather it was directly connected with the matter in dispute and the witnesses have not been discredited in any way. So the background referred to by me above as per the lay out plan of the colony the only conclusion which could be arrived at from the evidence referred to above is that Pran Nath has encroached upon plot No. 229 and the appellants have neither encroached upon plot No. 229 nor any portion of the road. The appellants had taken specific averments in the memorandum of appeal and it is borne out from the entire evidence that the said draftsman Umesh Mittal was an approved draftsman of the Municipal Committee and had an experience of 20 years. DW4 Sat Pal who is from the immediate neighbourhood has given a correct version. DW10 had been delivering possession of the plots to various persons in the colony being connected with the said colonizer, but there is no rebuttal to his statement. So in these circumstances, I am of the considered view that the finding arrived at by the learned trial Court on issue No. 2 cannot be sustained and the same is reversed."

9.The learned counsel for the appellants only stated that it stands proved on the record that defendants respondents have encroached upon the area of the land forming part of plot No. 229 and as such the suit of the plaintiffs should have been decreed by the first Appellate Court by affirming the judgment and decree of the trial Court.

After going through the evidence of this case and after going through the impugned judgment, I am of the considered opinion that the reasons advanced by the first Appellate Court are correct and it is not proved on the record that the defendants had made any encroachment upon any portion of plot No. 229. Rather it stands proved even from the statement of Pran Nath PW5, who was the owner of plot No. 220, that he made encroachment upon plot No. 220. In this case, Ex.PA is the lay out plan which is very material for our purposes. I will try to pinpoint where the plot of the plaintiff, where the plots of the defendants, where the plot of Pran Nath is situated and where the alleged encroachment has been made and who can possibly encroach any portion of plot No. 229 and possibly can relate hindrance in the blockage of the road. The examination of the site plan Ex.PA would show that there is a row of four plots bearing Nos. 230, 231, 232 and 233. These are on the southern side of the land. In front of these four plots i.e. on the northern side there is a 20 feet wide road. Then there is a row of 5 plots bearing Nos. 225, 226, 227, 228 and 229. These 5 plots are on the northern side of the road measuring 20 feet in width of which I have just made a reference above. In this manner we can say that plots Nos. 225, 226, 227, 228 and 229 are located opposite to plots Nos. 230, 231, 232 and 233 and only a road measuring 20 feet intervenes. On the northern side of plot No. 229 there is plot No. 220. Thus it can be again said that the back side of plot No. 220 touches the back side of plot No. 229. Plots Nos. 232 and 233 are divided by a road. Plot No. 229 is a comer plot, whereas plots Nos. 232 and 233 are not the corner plots. In fact, plot No. 229 is not in front of plots Nos. 232 and 233. It can also be said that plot No. 229 has no continuity or connection with plots Nos. 232 and 233. Further, plot No. 228 is on the eastern side of plot No. 229. In this manner it can be said that if there is any encroachment on plot No. 229 it can either by the owner of plot No. 228 or the owner of plot No. 220, 228, 229 (allegedly of the plaintiff), 232 and 233 (allegedly of the defendants), then we have to examine whether the plaintiff has been able to prove that plot No. 229 has been encroached upon by the defendants, who are the owners of plot Nos. 232 and 233. A glance on the site plan Ex.PA would show that plot No. 229 must be at a distance of about 30 to 40 feet from plot No. 229. The plaintiff has led evidence in order to establish that it was the defendants who encroached and usurped plot No. 229. Ghansham Dass appeared as PW1. He is the owner of plot No. 199 in this very colony. According to him, he constructed his own house in the year 1972 and at that time the house had already been constructed by one Pran Nath, who is the owner of plot-No. 220. He further stated that towards the house of Pran Nath there was a shop which was constructed in the middle of the road, meaning thereby that Pran Nath, in fact, had constructed the house on plot No. 229 and he farther constructed the shop in the middle of the road measuring 20 feet in width which road intervenes plots Nos. 225, 226, 227, 228 and 229 and plots Nos. 230, 231, 232 and 233. Reverting to the site plan Ex.PA, it would show that, on the southern side of plot No. 229 there is a road, as stated by this witness, who constructed the house in the colony in the year 1972. This witness tried to become smart when he stated that there was a vacant site on the south of the house of Pran Nath. meaning thereby that plot No. 229 was lying vacant. If the shop has been constructed on the southern side of plot No. 220 or 229, it would mean that Pran Nath had virtually constructed the house on plot No. 229 and beyond that on the southern side a shop has been constructed in the middle of the road. This raises a reasonable inference that plot No. 229, in fact, was encroached upon by Pran Nath, who was the owner of plot No. 220, and not by the defendants. Even this witness does not say that Kasturi Lal was ever dispossessed by the defendants from plot No. 229. Pran Nath, owner of plot No. 220, appeared as PW5. he admitted that he constructed his own house in the year 1969. So much so, he stated that plot No. 229 belongs to him. meaning thereby that he constructed the house on plot No. 229 instead of plot No. 220 and in this manner encroachment has been made by him. The plaintiff has not examined the vendor of the sale deed to show whether the plot in question was lying vacant when it was allegedly sold to the plaintiff or that the physical possession of the plot was given to the plaintiff. Though Pran Nath wanted to show that nothing has been constructed on plot No. 229, but his statement cannot be accepted to this extent because if plot No. 229 is lying vacant, there was hardly any necessity on the part of Kasturi Lal to file a suit for possession with respect to plot No. 229. It is not the case of the plaintiff that plot No. 229 has been usurped by the owner of plot No. 228. So in all fairness the preponderance of evidence suggests that plot No. 229 has been encroached upon by the owner of Plot No. 220. Even the statement of Ghansham Dass PW7, owner of plot No. 213 suggests that on the southern side of plot No. 220, which is the ownership of Pran Nath, there was a vacant plot denoted by plot No. 229 belonging to Kasturi Lal. Kasturi La plaintiff appeared as PW12, but he too could not explain and tell when he took the possession of plot No. 229. In this view of the matter, the first Appellate Court rightly came to the conclusion that plot No.229 was encroached upon by Pran Nath taking it to be plot No. 220. it was for the plaintiff to establish that defendants had made the encroachment on plot No. 229 or part thereof. He has failed to do so. The plaintiff even failed to prove that any hindrance on the road towards southern side of plot No. 229 was created by the defendants. The Appellate Court believed the statement of Sat Pal DW4, who resided immediate in the neighbourhood.

In this view of the matter, I do not see any illegality in the judgment and decree dated 25.10.1979 passed by the Court of Addl. District Judge, Ambala. There is no merit in this appeal. The same is hereby dismissed with no order as to coasts.