Full Judgment
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Rs.No.5056 of 2012 (O&M) Date of decision: 12.05.2014 Jagdish & others -----Appellant(s) versus Smt.
Phoola Devi & others -----Respondent(s) CORAM:- HON'BLE Mr.JUSTICE RAKESH KUMAR GARG1 Whether reporters of local newspapers may be allowed to see judgment?.
2.
To be referred to reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
Present: Mr.P.R.Yadav, Advocate, for the appellants.
Mr.Ashish Yadav, Advocate for Mr.Deepak Chaudhary, Advocate for respondent no.1.
*** RAKESH KUMAR GARG, J.
This is plaintiffs’ second appeal challenging the judgments and decrees of the Courts below whereby their suit for declaration and permanent injunction was dismissed by the trial Court vide judgment and decree dated 18.11.2009 and further appeal against the aforesaid judgment and decree of the trial Court was also dismissed by the lower Appellate Court vide judgment and decree dated 30.1.2012.
Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.5056 of 2012 2 Plaintiff-appellants filed the instant suit pleading that they along with proforma respondents have been coming as joint owners in possession of the suit property shown by letters ABCDEFGH in green colour in the attached site plan since the time of their forefatheRs.According to them, the property shown in red colour was purchased by their ancestors vide registered sale deed dated 26.7.1957 whereas the property shown in blue colour was received by virtue of compromise dated 3.10.1958 from Banwari Lal.
It was alleged that defendant no.1 has got no right, title or interest in the suit property mentioned in para no.1 of the plaint, as she had already sold away the entire property of her father Banwari Lal and now, she was residing along with her family members in Delhi.
It was further alleged that defendant no.1 was having a bad eye on the property of the plaintiffs and thus, now she wants to transfer the property shown in red and blue colour to other persons of the village, claiming the property of her own and thus, she wants to take forcible possession of the said property in collusion with the anti-social elements of the village.
Since the defendants refused to admit the claim of the appellants, necessity arose to file the instant suit.
The suit was contested by the defendant-respondent no.1 only, disputing the correctness of the site plan attached with the plaint, which was allegedly against the factual position.
It was further submitted by defendant no.1 that she was owner in possession of the suit property which she had inherited from her Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.5056 of 2012 3 father.
Compromise dated 3.10.1958 was denied.
Controverting all other allegations, it was stated that the suit be dismissed with special costs.
On the basis of pleadings of the parties, following issues were framed:- “1.
Whether the plaintiffs and proforma defendants are owner in possession of the suit property described in para No.1 of the plaint, ifs so, to what effect?.
OPP2 Whether the defendant No.1 wants to occupy the suit property forcibly and defendant No.1 have no right, title or interest in it, if so, what effect?.0PD3 Whether the plaintiffs have suppressed the material facts as alleged?.
OPD4 Whether the defendant No.1 is in possession of the suit land as owner?.
OPD5 Whether suit is not maintainable in the present form?.
OPD6 Relief.”
.
Parties led oral as well as documentary evidence in support of their respective claiMs.On conclusion of trial, issues no.1 and 2 were decided against the plaintiff-appellants whereas issues no.3 to 5 were decided against the defendant-respondents.
Ultimately, the suit was dismissed by the trial Court vide judgment and decree dated 18.11.2009.
Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiffs preferred an appeal before the fiRs.Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.5056 of 2012 4 Appellate Court which was also dismissed.
While dismissing the appeal, the lower Appellate Court observed as under:- “8.
It is well settled principal of law that the plaintiff has to stand on his own legs to succeed on his strength and not the weakness of defendants case.
A useful reference in this regard may be made to Vishram Masish and another versus Hoshiar Singh 1995(1)LJR255.
It is the specific case of the plaintiffs that they were already coming as joint owners in possession of the property marked by letters ABCDEFGH which is shown in green colour in the site plan Ex.PW2/B since the time of their forefatheRs.whereas the property shown in red colour was purchased by their ancestors namely Badlu Ram, Mangal Ram, and Revti Nandan vide a registered sale deed dated 26.7.1957 Ex.PW5/1 and the property shown in blue colour was received by their fathers vide a compromise dated 3.10.1958 from the father of defendant No.1 namely Banwari Lal .
It is further the case of the plaintiffs that now defendant No.1, claiming herself to be the owner of the disputed portions shown in red and blue colour, wants Ito take forcible possession of the said portions in collusion with the anti social elements of the village and by putting pressure from the local police and also wants to oust them therefrom forcibly and illegally.
In order to prove their ownership with regard to the portion shown in red colour, the plaintiffs have mainly placed their reliance on the sale deed dated 26.7.1957.
On the other hand, the contesting defendant No.1 while disputing the correctness of the site plan filed by the plaintiffs along with their plaint, has filed her separate site plan along with her written statement Ex.DW3/A, which has duly proved on record by draftsman Ved Bhushan Yadav Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.5056 of 2012 5 DW3.
In the site plan Ex.DW3/1, the portion sold to Badlu Ram, Mangal Ram and Revti Nandan by Bodan has been shown in red colour, whereas the disputed portion under the possession and occupation of defendant No.1 Smt.
Phula Devi has been shown in blue color.
10.
A glance over the certified copy of the sale deed dated 26.7.1957 Ex.PW5/1 and the site plan Ex.PW5/2 attached there to would reveal that the property shown by the plaintiffs in red colour in their site plan Ex.PW2/B is not the same which was purchased by their ancestors from Bodan Ram because in the site plan Ex.PW5/2, the house of Bodan Ram has been shown in existence in the west of the property sold by him, whereas in the site plan Ex.PW2/B, no such house has been shown in existence.
Rather the plaintiffs have cunningly not mentioned the dimensions of their property shown I green colour so as to wrongly assert that the portion shown in red colour was purchased by them from Bodan.
Otherwise also, the plaintiffs have failed to prove on record that the portion shown in blue colour was received by their ancestors from Banwari Lal, the father of defendant No.1 in a compromise dated 3.10.1958 in as much as they have failed to lead any documentary evidence in that regard.
Not only this, it will also be seen that before the Panchayat convened on 4.3.2001 at the instance of defendant No.1 Smt.
Phula Devi also, the plaintiffs failed to produce any documentary evidence with regard to their ownership over the suit property, as would be evident from the document Ex.DW4/B.
In these circumstances, in the considered opinion of this court, the learned trial court, while returning its findings on issues No.1 and 2, rightly came to the conclusion that Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.5056 of 2012 6 the plaintiffs have failed to prove that they have got any right, title or interest in the suit property.
Therefore, the findings of the learned trial court being based on sound reasoning do not suffer any legal infirmity so as to call for any interference by this court.”
.
Still not satisfied, the plaintiffs have filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:- i) Whether the suit of the appellants has been dismissed by misreading of evidence of witnesses of the plaintiffs?.
ii) Whether once possession of the appellants over the disputed was admitted, the suit of plaintiffs for permanent injunction could not be dismissed?.
iii) Whether the Ld.
Trial Court misread the site-plan prepared by the local Commission Ex.DW5/E to hold that the appellants were in the process of taking possession rather the same supports the case of appellants that doors of houses of the appellants open in the disputed property ?.
iv) Whether both the Ld.
Courts below ought to have drawn adveRs.inference against defendant No.1 for concealing material facts from the Ld.
Courts below ?.
v) Whether the judgment passed by the Ld.
FiRs.Appellate Court is laconic and non-speaking and is only formal approval of the judgment of Id.
Trial Court?.
Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.5056 of 2012 7 It is the specific case of the appellants that they were in possession of the suit property marked by letters ABCDEFGH, as joint owneRs.which is shown in green colour in the site plan Ex.PW2/B since the time of their forefatheRs.whereas the property shown in red colour was purchased by their ancestors namely Badlu Ram, Mangal Ram and Revti Nandan vide registered sale deed dated 26.7.1957 (Ex.PW5/1) and the property shown in blue colour was received by their father vide compromise dated 3.10.1958 from the father of defendant no.1 namely Banwari Lal and now defendant no.1 was claming herself to be owner of the disputed portions shown in red and blue colours and wanted to take forcible possession and oust them.
Both the Courts below, while non-suiting the appellants have recorded a concurrent finding of fact that the appellants have failed to prove on record that the portion shown in blue colour was received by their ancestors from Banwari Lal in a compromise dated 3.10.1958, as they failed to lead any documentary evidence in this regard.
Even before the Panchayat convened on 4.3.2001, at the instance of defendant no.1, appellants failed to produce any documentary evidence with regard to their ownership over the suit property, as is evident from Ex.DW-4/B.
Even before this Court, counsel for the appellants could not controvert the aforesaid findings, as recorded by the Courts below.
Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh Rs.No.5056 of 2012 8 In view thereof, it cannot be said that the findings recorded by the Courts below are perveRs.and contrary to record.
It may further be noticed that on re-appraisal of evidence, even if a second view is possible, the same cannot be substituted by this Court with its own view while exercising its jurisdiction under Section 100 CPC.
Thus, no substantial question of law arises in this appeal.
Dismissed.
May 12, 2014 [RAKESH KUMAR GARG].ak JUDGE Kumar Ashwani 2014.05.19 14:02 I attest to the accuracy and integrity of this document High Court Chandigarh