Judgment:
Kuldip Singh, J.
1. The defendants have come in second appeal against the judgment, decree dated 15.12.1999 passed by the Additional District Judge, Solan, Camp at Nalagarh in Civil Appeal No. 33-NL/13 of 1998 affirming the judgment, decree dated 24.9.1998 passed by the Sub Judge 1st Class, Nalagarh in Civil Suit No. 47/1 of 1995.
2. The facts in brief are that the respondent had filed a suit for permanent prohibitory injunction against the appellants regarding land measuring 576 sq. feet situate in abadi deh bounded as follows: North - house of defendant South - Courtyard of plaintiff Whether reporters of Local Papers may be allowed to see the Judgment?. yes West - Gali Share-am East - residential house of Karam Singh. The suit land is part of abadi deh comprised in khasra No. 322, khewat/khatauni No. 107/113 min measuring 20-2 bigha, situate at village Jhiran, Tehsil Nalagarh, District Solan vide jamabandi for the year 1988-89.
3. The further case of the respondent is that he is owner in possession of the suit property and he stacks fuel wood etc on it. The suit property was purchased by the respondent from the Custodian Department in a public auction for an amount of Rs. 80/- and certificate to this effect was issued by the Naib-Tehsildar -cumManaging Officer on 4.10. 1960 which was registered in the office of Sub Registrar, Nalagarh as a deed No. 728 dated 15.12.1960. The appellants have no right, title and interest in the suit property, who threatened the respondent to dispossess him forcibly from the suit property, hence respondent filed the suit.
4. The suit was contested by the appellants by filing written statement in which preliminary objections of maintainability, non-joinder of necessary parties and respondent was never in possession of the suit property were taken. On merits, it has been pleaded that respondent has filed incorrect site plan, the ownership and possession of the respondent on the suit property was denied. It has been denied that respondent has purchased the suit property from the Custodian Department. The appellants are owners in possession of the suit property being residents and proprietors through themselves and through their predecessors-in-title since 15.5.1947. One Kesho Brahman used to reside in the suit land and property. Waziru predecessor-in-title of the appellants had purchased the suit property by way of oral sale from Kesho Brahman on 15.5.1960 for Rs. 60/-, who handed over the possession of the suit property to Waziru on 15.5.1960. There was shop of Kesho earlier at the place. The appellants are owners and in exclusive possession of the suit property. The sale certificate dated 4.10.1960 does not relate to suit property and in alternative, the same is a paper transaction. The abadi deh of the village has not been partitioned and appellants are entitled to remain in possession of the suit property unless dispossessed in due process of law. The appellants thus prayed for dismissal of the suit.
5. The respondent filed replication in which case of the appellants was denied and he re-asserted his case which was set up in the plaint.
6. On the pleadings of the parties, the following issues were framed:
1. Whether the plaintiff purchased the suit land from the custodian department as alleged? OPP.
2. Whether the plaintiff is owner in possession of the suit land as claimed? OPP.
3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction?. OPP.
4. Whether the predecessor-in-interest of the defendant purchased the suit land by way of oral sale on 15.5.60? OPD.
5. Whether the suit is not maintainable? OPD.
6. Whether the suit is bad for non-joinder of necessary parties? OPD.
7. Relief.
The issues No. 1 to 3 were answered in affirmative and issues No. 4 to 6 in negative and the suit was decreed on 24.9.1998 by the trial Court. The appeal filed in the lower Appellate Court was dismissed on 15.12.1999, hence second appeal which has been admitted on the following substantial question of law,
Whether the court below has misconstrued the sale certificate Ex. PW-2/A and Aks Shajra Kishtwar Nazri Ex. PW-1/A in holding that the suit property was purchased by the plaintiff and misread the oral and documentary evidence in raising a presumption under Section 114(g) of the Evidence Act for non-production of the Tatima and assuming that defendants having denied the title of the plaintiff should have established their title?
7. Heard and perused the record.
8. The learned Counsel for the appellants has submitted that the sale certificate Ex. PW-2/A has not been proved to be of the suit property nor Aks Shajra Kishtwar Nazri Ex. PW-1/A is a legal piece of evidence. The Courts below have misread oral and documentary evidence. The presumption under Section 114(g) of the Evidence Act, has been wrongly applied. The court below has erred in holding that appellants should have established their title on the suit property. The respondent has approached the Court, therefore, it was for the respondent to prove his title and possession on the suit property, so as to claim relief prayed. The learned Counsel for the respondent has supported the impugned judgment, decree.
9. The respondent has given full description of the suit property by the boundaries in the plaint. The appellants have denied the ownership and possession of the respondent on the suit property. The respondent has claimed his title on the suit property on the basis of sale certificate Ex. PW-2/A and the appellants have claimed their title on the suit property on the basis of oral sale made by one Kesho to Waziru predecessor of appellants on 15.5.1960..
10. PW-1 Surja Ram, retired Patwari has stated that he had prepared Naksha Moqua Ex. PW-1/A. He has denied that he had not visited the spot for preparing Ex. PW-1/A. PW-2 Karam Singh has stated that he had purchased the suit property in the year 1960 from Custodian Department for Rs. 80/- in open auction and sale certificate Ex. PW-2/A was issued to this effect to him. He is owner in possession of the suit property since then. He has also stated that he got prepared Ex. PW-1/A from retired Patwari Surja Ram. PW-3 Hari Singh has stated that plaintiff is owner in possession of the suit property.
11. DW-1 Pritam Dass has stated that before 1947 Mohammedans used to reside at the place, thereafter it came in possession of Kesho allottee, who sold it to Waziru for Rs. 60/- on 15.5.1960 and in this way, Waziru came in possession of the suit property. Kesho remained in possession from 1947 to 1960. In cross-examination he has stated that prior to 1947 Mohammedans were owners of the suit property. In the context of purchase by Waziru, he has stated that sale deed was executed. DW-2 Hukamdin has stated that they are in possession of the suit property which was earlier owned by Kesho Pandit, who was having a shop which was sold by him to his grand-father Waziru for Rs. 60/- on 15.5.1960. He has denied that suit property was purchased by the respondent.
12. The dispute is not with respect to the identity of the property but the dispute is whether the appellants are the owners in possession of the suit property or respondent is owner in possession of the suit property. DW-1 Pritam Dass has stated that before 1947 Mohammedans used to reside on the suit property and Kesho was allottee of the suit property. In other words, he wanted to convey that the suit property came to Kesho by way of allotment. DW-1 has also stated that the sale deed was executed by Kesho in favour of Waziru. The pleaded case of the appellants is that Kesho orally sold the suit property to Waziru. There is thus contradiction in the pleaded case of the appellants and the statement of DW-1 that a sale deed was executed by Kesho in favour of Waziru for transferring the suit property.
13. The appellants have taken contradictory stand in their written statement, they have pleaded that they are owners in possession of the suit property being residents and proprietors through themselves and through their predecessors-intitle and they have also pleaded case that the suit property was purchased by their predecessor from Kesho. The appellants are not sure whether they are owners in possession being residents and proprietors of the village or they are owners in possession of the suit property on the basis of sale made by Kesho in favour of their predecessor. DW-1 has clearly stated that the suit property was earlier owned by Mohammedans and it was allotted to Kesho. The appellants have not specifically pleaded that Kesho was proprietor in the village and in that capacity, he was owner in possession of the suit property. The title of Kesho on the suit property has not been clearly established.
14. Insofar the respondent is concerned, he has relied Ex. PW-2/A sale certificate which was registered on 15.12.1960. The respondent has also proved Aks Shajra Kishtwar Nazri Ex. PW-1/A prepared by PW-1 Surja Ram, Patwari. The objection of appellants to Ex. PW-2/A and Ex. PW-1/A is that these documents do not connect the ownership and possession of the respondent on suit property. The respondent has specifically stated that he had purchased the suit property vide Annexure PW-2/A. It does not emerge from the case of the appellants that Ex. PW-2/A and Ex. PW-1/A are of some other specific property. PW-3 has stated that respondent is owner in possession of the suit land. There is nothing on record to disbelieve the version of respondent that Ex. PW-2/A and Ex. PW-1/A are of the suit property. The appellants have not placed on record concrete evidence to establish their ownership and possession on the suit property. In second appeal, re-appreciation of the evidence is not possible. The admissibility of Ex. PW-2/A and Ex. PW-1/A is not involved in the substantial question of law. The appellants have raised the question of mis-construction of Ex. PW-2/A and Ex. PW-1/A. But the two Courts below on the basis of evidence on record have recorded a finding of fact that in view of Ex. PW-2/A and Ex. PW-1/A, the respondent has proved his case. The finding recorded by two Courts below is not perverse nor based on inadmissible evidence. No case for interference is made out. The substantial question of law is thus decided against the appellants.
15. No other point was urged.
16. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs.