Udai Bhan and Others vs Chatri and Another

Vinod K. Sharma, J.

Respondent No. 2 has refused to accept service, therefore, he is deemed to have been served. Service is complete.

This regular second appeal is directed against the judgment and decree dated 15.4.2008, passed by the learned lower appellate Court, decreeing the suit filed by the Plaintiffs / Respondent for permanent injunction restraining the Defendant / Appellant herein from raising construction over the "Shamlat Chowk".

The pleaded case of the Plaintiffs was, that the Plaintiff / Respondents were inhabitants of Mohalla Gudiya, Ward No. 8, Patti Gharam Hodal, Distt. Faridabad, there existed a "Shamlat Chowk" depicted by letters ABCD, in front of the houses of the parties to the suit, and other inhabitants of Mohalla Gudiya Patti Gharam Hodal, which was bounded as under:

East : Road of Municipal committee, Hodal

West : Chabutra and haveli of Udai Bhan and Smt.

North : Thoroughfare

South : Thoroughfare

The case of the Plaintiffs was, that the chowk in dispute was being used as "Shamlat Chowk" by all the inhabitants of the Mohalla Gudiya Patti Gharam Hodal from the time immemorial i.e. from the time of their forefathers.

The Plaintiffs sought injunction on the pleadings, that the Defendants under the garb of purchase of Haveli from the owner were trying to interfere and raise construction over the Shamlat chowk, to which they had no right, title or interest.

The suit was contested by the Defendant / Appellants, by challenging the locus standi of the Plaintiff / Respondents to file the suit. It was denied, that Chowk was being used by the Plaintiffs and other inhabitants of the Mohalla Gudiya Patti Gharam Hodal, for common purposes. The stand of the Defendant / Appellants was, that the Chowk in dispute was previously owned and possessed by Sh. Raghunath, who sold the property in dispute to Defendants No. 1 & 2 for consideration of Rs. 2,25,000/-(Rupees two lac and twenty five thousand only), vide registered sale deed dated 10.11.1998, and delivered the physical possession to them.The Defendant / Appellants claimed themselves to be owners in possession of the suit property. The plea that "Shamlat Chowk" was left when a compromise was arrived at by the previous owner, was also disputed by the Defendant / Appellants. It was prayed, that the Plaintiffs have no cause of action to seek injunction against the Defendant / Appellants.

The learned trial Court on appreciation of evidence recorded a finding, that the Plaintiff / Respondents had failed to prove, that there existed "Shamlat Chowk" marked by letters ABCD in the site plan. The reason for coming to this conclusion was that Ex.P-1 i.e. compromise on which strong reliance was placed by the Plaintiff / Respondents to claim it to be a "Shamlat Chowk", was not read in evidence, as only photo copy was produced and not the original, though it was claimed to be in their possession.

The learned trial Court further held, that Ex.P-1 was not proved in accordance with law, even though specific objection was taken when it was got exhibited by the Plaintiff. The suit was held to be not maintainable. On issue No. 3, the learned trial Court held, that the Plaintiffs did not have any locus standi to maintain the suit.

Issues No. 2 to 5 were otherwise not pressed and were decided against the Defendants.

In view of finding on issue No. 1, the suit filed by the Plaintiff / Respondents was ordered to be dismissed.

The Plaintiff / Respondents preferred an appeal. The learned lower appellate Court reversed the finding of the learned trial Court on issue No. 1 and held, that Chowk ''ABCD'' was in fact a "Shamlat Chowk", therefore, the Defendant / Appellant had no right to encroach upon the Chowk, therefore, decree for injunction was passed in favour of Plaintiff / Respondents.

The learned lower appellate Court also did not take into consideration Ex. P-1. The learned lower appellate Court affirmed the finding of the learned trial Court that Ex. P-1 i.e. the compromise, on which reliance was placed by the Plaintiff, could not be read in evidence.

However, the learned lower appellate Court held, that the sale deed on the basis of which the claim of ownership was raised by the Defendant / Appellants itself depicted the existence of "Shamlat Chowk". The learned lower appellate Court came to the conclusion, that the Defendant / Appellants could not raise any construction over the said Chowk and passed the decree in favour of Plaintiff / Respondents by reversing the finding of the learned trial Court on issue No. 1.

Mr. Ajay Jain, learned Counsel appearing on behalf of the Appellants contends, that this appeal raises the following substantial question of law:

Whether the judgment and decree passed by the learned lower appellate Court is perverse, being against the settled principle of law that the Plaintiff has to stand on his own legs and cannot take advantage of the weaknesses in the case of the Defendant?

In support of the substantial question of law, the learned Counsel for the Appellants contended, that reading of the plaint would show, that the Plaintiff / Respondents had based their case on compromise Ex. P-1, by claiming the property in dispute to be "Shamlat Chowk", said to have been given by the original owner vendors of Defendant / Appellants.

The contention raised was, that once the learned Courts below did not take Ex. P-1 into consideration being a photo copy and not proved in accordance with law. There was no other evidence in support of the case set up by the Plaintiff / Respondents, therefore merely because in the sale deed "Shamlat Chowk" was shown, could not be a basis to reverse the finding of the learned trial Court, as the learned lower appellate Court was bound to decide the case on the basis of the evidence led by the Plaintiffs by ignoring the weaknesses in the case of the Defendants.

On consideration, I find no force in the contentions raised by the learned Counsel for the Appellant. The case set up by the Plaintiffs was, that there was a "Shamlat Chowk" being used by the community as a whole. In support thereof, reliance was placed on Ex.P-1. Besides Ex.P-1, there was a statement of the Plaintiff with regard to the existence of "Shamlat Chowk". This fact was even admitted in para 5 of the written statement filed by the Defendant / Appellant, which reads as under:

That the above said Raghunath and Ors. have sold away the said Haveli to the Defendants No. 1 & 2 vide a registered sale deed dated 10.11.1998. The Defendants have got no right, title or interest what-so-ever in the shamlat Chowk in dispute stated in para No. 2 of the plaint in any manner.

The learned lower appellate Court decided the case on appreciation of the evidence led by the Plaintiffs read with the documentary evidence, on record placed by the Defendants.

Once Ex.P-1 was taken out of consideration for want of proof in accordance with law, the Court was bound to decide the case on the basis of available evidence. If the statement of the Plaintiff / Respondent is read with document Ex. D-1, it cannot be said, that the learned Court has based its judgment, on the weaknesses of the Defendants, and not on the basis of the case set up by the Plaintiffs, as contended.

The factum of existence of "Shamlat Chowk", was not only admitted by the Defendant / Appellants in their written statement in para 5, referred to above, it was also depicted in the sale deed executed in his favour by Raghunath, wherein while describing the boundaries "Shamlat Chowk" was shown to be in existence.

Once "Shamlat Chowk" was not part of the property sold to the Defendant / Appellants, it cannot be said by any stretch of imagination that the Appellants had any right in the property merely because compromise Ex.P-1, was not proved, and the Court was bound to dismiss the suit filed by the Plaintiff.

Besides Ex.P-1, there was oral evidence, which stood proved by the sale deed relied upon by the Defendant / Appellants. The reading of the judgment of the learned lower appellate Court, therefore, does lead to a conclusion, that the findings of the learned lower appellate Court, are based on the weaknesses of the defendants, and not on the basis of positive case of the plaintiff.

The substantial question of law is answered against the Appellant.