Smt. Lila Devi vs Devi Ram

A.S. Nehra, J.—Plaintiff-appellant Leela Devi has filed this appeal against the judgment and decree dated 28-5-1985 passed by District Judge, Faridabad.

The brief facts of the case are that plaintiff appellant Leela Devi filed a suit against defendant Devi Ram seeking to restrain him from interfering in her possession over the plot depicted by the letters ''ABCD'' in the site plan.

It has been averred in the plaint that the plaintiff is the owner in possession of the aforesaid plot which she purchased from Happi and others, vide registered sale deed dated 19-9-1983 for consideration of Rs. 1500/-; that after the execution of the sale deed, the said vendors put the plaintiff appellant in actual physical possession over the same, that thereafter the plaintiff appellant has been enjoying the fruits of its possession by using it as a ''Gitwar''; that she has constructed a Khor and a Chhan ovar it and that cow-dung cakes are also prepared and Malba is collected therein.

It was further stated by the plaintiff appellant that the defendant had no right, title or interest in this plot but he was bent upon to dispossess the plaintiff. The defendant filed written statement contesting the avernments made in the plaint. It has been alleged in the written statement that the plaintiff is neither the owner nor in possession of the property, in dispute which is a Nohra of the defendant and is in his possession since long

From the pleadings of the parties, the folio wing issues were framed :-

Whether the plaintiff is owner In possession of the plo in dispute ?

Whether the plaintiff is entitled to the relief of injunction as prayed for ?

Whether the plaintiff has got no locus standi to file the suit ?

Whether the suit is not maintainable, as alleged ?

Whether the suit is collusive, as alleged ? if so, its effect?

Relief.

The trial Court clubbed issue Nos. 1, 3 and 4 together because they are inter-connected. To prove the sale deed, the plaintiff examined Narain Diss, petition-writer, and Happi Happi deposed as PW-2 and testified that the plot, in dispute, belonged to him, Inder and Balbir, which they sold to the plaintiff for a consideration of Rs. 1,500./-; that she was put in possession after the execution of the sale deed; that she has constructed a Khor and a Chban over it; that she also tethers her cattle there and that the plaintiff has constructed two pillars on one side of the plot for fixing a gate Sher Singh PW 4 is the mason who constructed this gate. Dal Chand deposed as PW-5 that the plaintiff got constructed a gate, a Khor and a hutment over the plot, in dispute; after its purchase from Happi and others. All the above mentioned witnesses have been able to establish the two facts, namely, that the plot, in question, was purchased by plaintiff Leela Devi from Happi and others and. secondly, that after the execution of the sale deed, the plaintiff constructed a Khor, a gate and a hutment over the plot and has been using it for many purposes like making cow-dung cakes, tethering cattle and dumping garbage. Defendant Devi Ram appealed as DW 1, who does not know the length and width of the plot, in dispute, and he has not been able to mention the three sides of the plot correctly The witnesses examined by the defendant were not believed because they damaged the case of the defendant. The trial Court, after examining the evidence, decided issue No. 1 in favour of the plaintiff and issues Nos. 3 and 4 against the defendant. Issue No. 2 was decided in favour of the plaintiff and it was held that the plaintiff is the owner in possession of the plot, in dispute and as such she is entitled to the relief of injunction. Issue No. 5 was decided against the defendant. The suit filed by the plaintiff was decreed by the trial Court with costs.

The defendant Devi Ran, aggrieved by the judgment and decree of the trial Court filed an appeal before the District Judge, Faridabad. The lower appellate Court reproduced the finding of the trial Court in Paragraph 7 of its judgment, which reads as under : -

"Therefore all these witnesses have been able to establish two facts, namely, that the plot, in question, was purchased by Smt. Leela Devi from Happi, Inder and Balbir, vide registered sale dead for a consideration of Rs. 1500/- and secondly, that after the execution of the deed, the plaintiff has constructed a Khor, a gate and a hutment over it and has been using this plot for many purposes like making cow-dung cakes, tethering cattle and dumping garbage."

Paragraph 10 of the judgment of the trial Court was also reproduced in its judgment by the lower appellate Court, which reads as under:-

"Therefore, it stands establised that the plot, in dispute, is under active possession of the plaintiff who has constructed in it the things mentioned above and is also using this plot for making cow dung cakes, tethering cattle and dumping garbage."

Paragraph 1 of the judgment of the trial Court was also reproduced in its judgment by the lower appellate Court, which reads as under :

"I have already observed above that the plaintiff is in active possession of the suit land from the day Exhibit P-l was executed. Therefore, she shall be deemed to be the owner thereof. Therefore, she need not prove the title of her vendors as required by law."

The learned lower appellate Court, after reproducing the above mentioned finding of the trial Court, has held that the observations of the trial Court would tend to show that the Court was not pursauded to accept the title of the vendors because the evidence led on the record did not at all prove the title of the predecessors. The plaintiff-appellant has examined the vendor Happi as PW 2 who has proved the sale deed. Therefore, the finding of the learned lower appellate Court on issue No. l is reversed and it is held that the plaintiff-appellant is the owner in possession of the plot, in dispute. Finding of the trial Court on issue No. 2 was also reversed by the lower appellate Court. The witnesses examined by the plaintiff appellant were not disbelieved. Findings of the trial Court given in paragraphs 9, 10 and 11 of its judgment were also not reversed. Admittedly, the plaintiff-appellant is in active possession of the plot, in dispute, who has constructed a Khor, a gate and a hutment over it. The lower appellate Court has held that such type of acts do not amount to acts of possession at all and they are just miscellaneous users of the property. This finding given by the learned lower appellate Court is against the evidence on the record. In view of the findings of the trial Court on issues Nos. 1 and 2, which have been reproduced by the lower appellate Court, it is held that the plaintiff- appellant is in possession of the plot, in dispute and as such she is entitled to the relief of injunction. Muhammad Amin Khan and Ors. v. Balanda and Anr. A. I. R. 1929 Lah. 71 relied upon by the lower appellate Court, is not applicable to the facts of the present case. It has been held in Muhammad Amin Khan''s case (supra) that an owner of land cannot be said to be out of possession so as to disentitle him for an injunction merely because the defendant collects cattle on the lard or fixes mangers or pegs or erects a platform thereon. Similarly, Rulta and Anr. v. Nur Muhammad and Anr.A. I. R. 1926 Lah. 615 and Waziri Mal and Ors. v. Ganga Ram and Ors. A. I. R. 1924 Lah. 370. relied upon by the learned counsel for the respondent, are not applicable to the facts of the present case.

Mr. M. L. Sarin, learned counsel for the appellant, cited Sadhu Ram v. Gram Panchayat, Pastana Sub Tehsil Ndokheri, Tehsil and District Karnal 1984(1) Rent C. R. 482 a Division Bench judgment of this Hon''ble Court, wherein it has been held :-

"It is well settled that the granting of ad Interim injunction is purely within the discretion of the Court but the discretion has to be exercised in accordance with the sound judicial principles. The principles which govern the exercise of the discretion are that the party claiming ad interim injunction should establish that it has a prima facie case, that if it is not granted it is likely to suffer a greater mischief and that inference by the Court is necessary to protect it from an irreparable injury. When relief of injunction is claimed against forcible dispossession from immovable property the established principle of law is that the party in ''possession for a sufficient long time is entitled to retain it unless dispossession in due coarse of law."

The above mentioned Division Beach judgment is fully applicable to the present case Admittedly, the plaintiff appellant is in possession of the plot, in dispute, since 1983 and the defendant respondent is neither in possession of the said plot nor is it owned by him. Therefore, the findings of the lower appellate Court on issues Nos. .1 and 2 and set aside and the findings given by the trial Court are restored. I accept the appeal and decree the suit of the plaintiff appellant with costs.