Telu Ram vs Badhu Ram

Harphul Singh Brar, J.—This is an appeal against the judgment and decree of the Additional District Judge, Karnal, dated January 3, 1979 vide which he set aside the judgment of the learned Subordinate Judge First Class, Kurukshetra, dated October 29, 1976 grating a decree to the plaintiff for permanent in junction restraining the defendants from interfering with the possession of the plaintiff over the suit property otherwise than in due process of law.

It is the judgment of the learned Additional District Judge, Karnal reversing the judgment of the trial Court which is sought to be set aside in this Regular Second Appeal.

Briefly stated the facts are that the plaintiff-applicant brought a suit for permanent injunction against the defendant-respondents on the allegations that one Daulat Ram who was the owner of the property detailed in Para No. 1 of the plaint had sold the same to the plaintiff-appellant vide Sale Deed, dated September 27, 1946 and at the time for the sale there were shops on the said property which fell down some time later and the plaintiff-appellant was using the said property for tethering his cattle etc. The defendant-respondents tried to interfere with the said possession and thus, he filed a suit for permanent injunction against them. The defendant-respondents in the written statement denied the allegations of the plaintiff-appellant about his being owner or in the possession of the above property. It was alleged by them that Moola, father of respondent No. 1 and the plaintiff-appellant was owner of the said property and after his death in the family partition the above said property had fallen to the share of respondent No. 1 and he (respondent No. 1) was in possession of the same since then.

On the pleading of the parties following issues were framed by the trial Court;

Whether the plaintiff is owner of the suit property? OPP

Whether the plaintiff is in possession of the suit property? OPP

Whether the suit is bad for misjoinder of parties? OPD

Whether the suit has not been properly valued for purposes of court-fee and jurisdiction? OPD

Relief.

Issues 2, 3 and 4 were decided by the trial Court in favour of the plaintiff- appellant and against the respondents.

Under Issue No. 1, the trial Court held that the plaintiff-appellant succeeded in proving that he was owner to the extent of half share of the suit property but had failed to prove his ownership with regard to its remaining half share. However it was held that remaining of the property was the ownership of Moola father of the plain- tiff-appellant. Under Issue No. 2 the trial Court held that the property in dispute was in possession of plaintiff-appellant Telu Ram.

Ultimately, the suit of the plaintiff-appellant for permanent injunction restraining the defendant respondents from interfering with possession of the plain- tiff-appellant over the suit property otherwise than in due process of law, was decreed with costs.

Appeal against this judgment and decree of the learned Subordinate Judge First Class, Kurukshetra filed by the defendant-respondents was accepted by the learned lower appellate Court and the suit of the plaintiff-appellant was dismissed and the learned Additional District Judge, Karnal further passed a decree for grant of injunction restraining both the plaintiff-appellant and defendant-respondents from raising any construction on the above property till any partition was effected between them.

As stated above it is this judgment and decree dated January 3, 1979 of the lower appellate Court which have been assailed in this Court.

The lower appellate Court affirmed the finding of the trial court on Issue No. 1 to the extent that the plaintiff-respondent is owner of the half share in the property in dispute and remaining half share belonged to Moola father of defendant No. l appellant and held that defendant No. l appellant was a co-sharer in the above property.

Finding of the learned trial Court on Issue No. 2 was set aside by the lower appellant Court and it was held that respondent No. 1 was co-sharer in the property and as such the plaintiff-respondent could not be held to be in exclusive possession of the property. It was held by the learned lower appellant Court that there was a variation in the Site Plan prepared by the Local Commissioner and the Site Plan submitted by the plaintiff regarding the identification of the property in dispute and as such the possession of the plaintiff appellant was not proved on the property in dispute.

Resultantly the judgment and decree of the trial Court were set aside and a decree was passed by the lower appellate Court for grant of injunction restraining both the parties from raising any construction on the above property till any partition was effected between them.

It is an admitted fact that half share of the property in dispute was purchased by plaintiff Telu Ram son of Moola from Daulat Ram on September 27, 1946, and other half of the property admittedly belonged to Moola. It is also admitted by the counsel for the parties that plaintiff - appellant and defendant - respondent Budh Ram were the sons of Moola. PW1 Jai Singh PW2 Sher Singh and PW3 Telu Ram plaintiff-appellant stated on oath at the trial that the entire suit property was in possession of Telu Ram plaintiff-appellant and it was admitted by DW2 Budh Ram defendant-respondent No.l that his father Moola and Telu Ram plaintiff used to reside together and that he used to reside separately. Shri S.C. Sharma, Advocate Local Commissioner in this case was examined as PW3 and his report is Exhibit PX and the Site Plan prepared by him is Exhibit PX/1. Exhibit PX/1 shows that there are galis on the north and south of the property in dispute which tallies with the Site Plan appended with the plaint by plaintiff-appellant Telu Ram. Moreover, neither any objection before the Local Commissioner was raised nor any objection was made later on about the identity of the property in dispute by the defendant-respondent or anyone else. Thus, the learned lower appellate Court has arrived at a finding about the possession of the property in dispute without any basis. There is not even a iota of evidence to prove that the property in dispute was in possession of the defendant-respondents at any point of time. It is rather proved by the plaintiff by oral as well as documentary evidence that he was -and remained in possession of the property in dispute even after the death of Moola. It is proved from the testimony of PW Jai Singh PW Sher Singh PW Telu Ram plaintiff-appellant as well as from the admission of DW Budh Ram, defendant-respondent himself that his father Moola and Telu Ram plaintiff-appellant used to reside together in the property in dispute and Budh Ram DW aforesaid used to live separately from them. There is no evidence on the file which could indicate that the defendants ever lived with Moola who was living with the plaintiff-appellant in the disputed property. It is not even the plea of the defendants-respondents. There is no evidence on the file to show that after the death of Moola, the plaintiff-appellant was ever dispossessed from the suit property. The plea of the defendants-respondent before the trial court was that the suit property had fallen to the share of defendant No. 1 in a family settlement. This plea of the defendants was rejected by the trial Court, and rightly so, as there was no evidence on the file to substantiate the same. This finding of the trial Court was even affirmed by the learned lower appellate Court but strangely enough, the lower appellate Court has made out entirely a different case for the defendant-respondents which was not even pleaded by them.

Resultantly, the appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored.

In the circumstances of the case, however, I make no order as to costs.