Tara Chand and Another vs Hari Singh and Others

Gurdev Singh, J.—This second appeal has been preferred by the Appellants-Defendants against the judgment and decree dated 2.5.2008

passed by Additional District Judge, Faridabad, vide which he accepted the appeal preferred by the Respondents-Plaintiffs against the judgment

and decree dated 11.1.2007 passed by Additional Civil Judge(Senior Division), Palwal, dismissing their suit for permanent injunction restraining

the Defendants from dispossessing them from the property in dispute, fully detailed in the plaint, and decreed the suit.

The case of the Plaintiffs, as pleaded in the plaint, is that they are the owners in possession of the property in dispute in which they have their tin

shed, managers, trees etc. and they have encircled the same with the help of boundary wall. They are coming in peaceful, continuous and

interrupted possession thereof since the time of their ancestors and to the knowledge of the Defendants. Their ownership was objected to by Ram

Dayal in Civil Suit No. 966 dated 12.12.1998, which was decided in their favour, vide judgment and decree dated 21.12.1998. The Defendants,

who are strong head persons, want to dispossess them from this property forcibly and illegally. Therefore, they filed suit for permanent injunction.

The suit was contested by the Defendants. In their written statement they denied the contentions of the Plaintiffs and pleaded that the Plaintiffs

are not owners in possession of the suit property and the boundaries thereof have been given wrongly by them. When they are not in possession,

there is no question of dispossessing them there from. They have no locus stand to file suit and are stopped from filing the same by their own act

and conduct.

On the pleadings of the parties, following issues were framed by the learned trial court:

1 Whether Plaintiffs are owners in possession of suit property mentioned in para No. 1 of the plaint?OPP

2 Whether Plaintiffs are entitled to relief as prayed for?OPP

3 Whether Plaintiffs have no locus stand and cause of action to file the present suit?OPD

4 Whether the present suit is not maintainable in the present form?OPD

5 Whether Plaintiffs are stopped from filing the present suit by their own acts and conduct?OPD

6 Whether Plaintiffs have not come to the court with clean hands and have suppressed the material facts from the court?OPD

7 Relief.

To succeed in the suit, Plaintiffs examined Bhajan Lal, PW-2 and Tota, PW-3. Hari Singh, Plaintiff No. 2, entered the witness box as PW-2.

On the other hand, Defendants examined Sher Singh, DW-1, Hazari, DW-2, Sumer Singh, Draftsman, PW-3 and Tara Chand, DW-4.

After going through that evidence and hearing learned Counsel for the both the sides, learned trial court decided all the issues against the

Plaintiffs and resultantly dismissed their suit. As already said above, the first appeal was preferred by the Plaintiffs against that judgment and

decree, which was accepted and their suit was decreed.

I have heard counsel for both the sides.

It has been submitted by learned Counsel for the Defendants that the First Appellate Court committed illegality while upsetting the well reasoned

findings recorded by the Trial Court against the Plaintiffs. The Plaintiffs have failed to produce any documentary evidence to prove their ownership

and the learned trial court has correctly drawn presumption against them on account of non-production of that evidence. He also submitted that the

First Appellate Court recorded the finding in favour of the Plaintiffs that they are in possession of the property in dispute merely on the ground that

the Defendants failed to prove their possession. Thus, substantial question of law arises, ""whether such a finding could have been recorded in

favour of the Plaintiffs on the basis of the evidence so produced by them.

I do not find any merit in the submissions made by learned Counsel for the Defendants. Admittedly, the suit property is situated within the Lal

Lakir and, as such, there was no question of any other document regarding the ownership. There was no question of field book or the map of the

abadi land, as has been said by the trial court in its judgment and for the non-production of which, it had drawn adverse inference against the

Plaintiffs. All the oral evidence produced by the Plaintiffs was brushed aside on the ground that the facts were required to be proved by

documentary evidence; which is apparently against the law. All the facts, except the contents of the documents, can be proved by oral evidence

though it is required to be direct. It is very much clear from the judgment of the First Appellate Court that the Plaintiffs produced oral evidence

regarding their possession and on the basis of that oral evidence finding was recorded in their favour. The Defendants failed to prove their

possession over the property in dispute. It cannot be said that the findings recorded by the First Appellate Court are perverse or are the result of

misreading of the evidence. No substantial question of law arises in this appeal. The same is, therefore, dismissed.