“after Considering the Rival Contentions of the Vs. Jyoti and Others --respondents - Court Judgment

SooperKanoon Citationsooperkanoon.com/1134444
CourtPunjab and Haryana High Court
Decided OnMar-12-2014
Appellant“after Considering the Rival Contentions of the
RespondentJyoti and Others --respondents
Excerpt:
rs.no.1372 of 2012 (o&m) 1 in the high court for the states of punjab and haryana at chandigarh. rs.no.1372 of 2012 (o&m) decided on 12.3.2014 bachni devi and another --appellants versus jyoti and others --respondents coram: hon'ble mr.justice rakesh kumar jain present: mr.n.s.sidhu, advocate, for the appellants rakesh kumar jain,j.(oral) cm no.3302 -c of 2014 delay of 60 days in refiling the appeal is hereby condoned. cm is allowed. rs.no.1372 of 2014 (o&m) the plaintiffs/appellants filed a suit for possession by way of partition of a plot measuring 0 kanal 8 marlas shown with letters abcd in the site plan attached with the plaint. it is alleged that originally, devi ditta,was the owner of the plot in question, who expired about 45/46 years back and after his death, his daughters/plaintiffs and son chain singh inherited the property in dispute in equal share. since devi ditta had three children, therefore, both the plaintiffs, who happen to be his daughters ram rikhi claim 2/3 share in the suit property and are allegedly in possession through 2014.03.20 17:20 i attest to the accuracy and integrity of this document rs.no.1372 of 2012 (o&m) 2 darbari lal son of dhani ram, ist cousin of plaintiff no.1 who is using the same as 'haveli', installed mussal, gheera, co.dung etc.in the suit property and the defendants, suddenly came to the village about 22/23 years.have started dispossessing the plaintiffs. in the reply, it is averred that the suit property was owned by chain singh son of devi ditta and after his death, it came to the share of his daughters.son and wife. chain singh, during his life time, constructed a house over the plot in dispute and hand pump was also installed. it is denied that devi ditta was the original owner of the suit property, rather said chain was owner and in possession. the trial court dismissed the suit of the plaintiffs. their appeal was also met the same fate because they failed to prove that the suit property was ancestral in nature. the finding recorded by the appellate court reads as under:- “after considering the rival contentions of the parties and going through the record, i am of the considered view that there is no merit in this appeal and as such same deserves dismissal. appellants have miserably failed to prove that the suit plot was the ancestral property of the parties to the suit as they have failed to lead an iota of evidence on the file that suit land was originally owned by devi ditta. it is neither pleaded nor proved that how, when and in what manner devi ditta purchased the suit property nor it has been disclosed from whom he had purchased the same. simply because dw-1 and dw-2 have stated in their cross-objection that it was ancestral property, does not mean that the ancestral nature of the suit property stands proved because it is settled law that on the basis of the oral evidence alone, ancestral nature of the property cannot be presumed. it has been held by the hon'ble supreme court in p.h.dayanand versus s.venugopal naidu & others.2009 (1) civil court cases 493 that plaintiff had to stand at their own legs and not to build up their case on the basis of deficiencies in the case of the defendants. in this case, although dw-1 and dw-2 have admitted that the suit property is ancestral property but the evidence on the ram rikhi 2014.03.20 17:20 i attest to the accuracy and integrity of this document rs.no.1372 of 2012 (o&m) 3 file led by the plaintiffs can also not be ignored. in this regard, pw-2 bishambar dass in his cross examination has admitted that one chattar singh was the owner of the village and he distributed the plots for the rehabilitation of the people, who migrated from pakistan. this admission on his part would show that it was not devi ditta but was chattar singh, who was the original owner of the suit property and there is neither any pleading nor any evidence on the file that chattar singh had given suit plot to devi ditta. thn as per case of the appellants, respondents took possession of the suit property forcibly in the year 2007. however, this suit was filed in october, 2007 meaning thereby that the respondents must have taken possession of the suit property in november- december 2007. but thus fact has not been disclosed by any of the witnesses of the appellants. although all the witnesses admitted the respondents to be in possession of the suit property and that it is the respondent who constructed the house in the suit property but according to them, it was constructed during the pendency of the suit. however, evidence of appellant raj pal is contrary to this fact. he has pleaded in his affidavit ex.pw-3/a that they are in possession of the suit property through one darbari lal and that said darbari lal has been using it as a 'haveli' and he has kept chaff, roori, logs of woods etc.in the suit property and he remained in possession of the same till january, 2009, whereas, as stated above, it is in the cross examination of pw-3 darbari lal that respondent jyoti took possession of the suit property in the year 2007. thus, appellant themselves are not sure as to when the respondents took possession of the suit property. further more, all the witnesses examined by the appellants are closely related to them. pw-1 bachni devi has not come present for her cross- examination, whereas pw-3 darbari lal is the firs.cousin of appellant no.1 and pw-4 sadari lal is the husband of bachni devi appellant. no respectable person of the village like sarpanch, panch or numberdar etc.has been examined by the appellants”.after hearing counsel for the appellants and appreciation of evidence brought on record, i do not find any error in the observation made by the appellate court while dismissing the appeal and since finding of fact has been recorded by both the courts below against the plaintiffs, the same would not be interfered with without there being any question of law. for the reasons recorded above, the present appeal is found to ram rikhi 2014.03.20 17:20 i attest to the accuracy and integrity of this document rs.no.1372 of 2012 (o&m) 4 be without any merit and the same is hereby dismissed. 12.3.2014 (rakesh kumar jain) rr judge ram rikhi 2014.03.20 17:20 i attest to the accuracy and integrity of this document
Judgment:

Rs.No.1372 of 2012 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh.

Rs.No.1372 of 2012 (O&M) Decided on 12.3.2014 Bachni Devi and another --Appellants versus Jyoti and others --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.N.S.Sidhu, Advocate, for the appellants Rakesh Kumar Jain,J.(Oral) CM No.3302 -C of 2014 Delay of 60 days in refiling the appeal is hereby condoned.

CM is allowed.

Rs.No.1372 of 2014 (O&M) The plaintiffs/appellants filed a suit for possession by way of partition of a plot measuring 0 kanal 8 marlas shown with letters ABCD in the site plan attached with the plaint.

It is alleged that originally, Devi Ditta,was the owner of the plot in question, who expired about 45/46 years back and after his death, his daughters/plaintiffs and son Chain Singh inherited the property in dispute in equal share.

Since Devi Ditta had three children, therefore, both the plaintiffs, who happen to be his daughters Ram Rikhi claim 2/3 share in the suit property and are allegedly in possession through 2014.03.20 17:20 I attest to the accuracy and integrity of this document Rs.No.1372 of 2012 (O&M) 2 Darbari Lal son of Dhani Ram, Ist cousin of plaintiff No.1 who is using the same as 'Haveli', installed Mussal, Gheera, Co.dung etc.in the suit property and the defendants, suddenly came to the village about 22/23 yeaRs.have started dispossessing the plaintiffs.

In the reply, it is averred that the suit property was owned by Chain Singh son of Devi Ditta and after his death, it came to the share of his daughteRs.son and wife.

Chain Singh, during his life time, constructed a house over the plot in dispute and hand pump was also installed.

It is denied that Devi Ditta was the original owner of the suit property, rather said Chain was owner and in possession.

The trial Court dismissed the suit of the plaintiffs.

Their appeal was also met the same fate because they failed to prove that the suit property was ancestral in nature.

The finding recorded by the Appellate Court reads as under:- “After considering the rival contentions of the parties and going through the record, I am of the considered view that there is no merit in this appeal and as such same deserves dismissal.

Appellants have miserably failed to prove that the suit plot was the ancestral property of the parties to the suit as they have failed to lead an iota of evidence on the file that suit land was originally owned by Devi Ditta.

It is neither pleaded nor proved that how, when and in what manner Devi Ditta purchased the suit property nor it has been disclosed from whom he had purchased the same.

Simply because DW-1 and DW-2 have stated in their cross-objection that it was ancestral property, does not mean that the ancestral nature of the suit property stands proved because it is settled law that on the basis of the oral evidence alone, ancestral nature of the property cannot be presumed.

It has been held by the Hon'ble Supreme Court in P.H.Dayanand versus S.Venugopal Naidu & otheRs.2009 (1) Civil Court Cases 493 that plaintiff had to stand at their own legs and not to build up their case on the basis of deficiencies in the case of the defendants.

In this case, although DW-1 and DW-2 have admitted that the suit property is ancestral property but the evidence on the Ram Rikhi 2014.03.20 17:20 I attest to the accuracy and integrity of this document Rs.No.1372 of 2012 (O&M) 3 file led by the plaintiffs can also not be ignored.

In this regard, PW-2 Bishambar Dass in his cross examination has admitted that one Chattar Singh was the owner of the village and he distributed the plots for the rehabilitation of the people, who migrated from Pakistan.

This admission on his part would show that it was not Devi Ditta but was Chattar Singh, who was the original owner of the suit property and there is neither any pleading nor any evidence on the file that Chattar Singh had given suit plot to Devi Ditta.

Thn as per case of the appellants, respondents took possession of the suit property forcibly in the year 2007.

However, this suit was filed in October, 2007 meaning thereby that the respondents must have taken possession of the suit property in November- December 2007.

But thus fact has not been disclosed by any of the witnesses of the appellants.

Although all the witnesses admitted the respondents to be in possession of the suit property and that it is the respondent who constructed the house in the suit property but according to them, it was constructed during the pendency of the suit.

However, evidence of appellant Raj Pal is contrary to this fact.

He has pleaded in his affidavit Ex.PW-3/A that they are in possession of the suit property through one Darbari Lal and that said Darbari Lal has been using it as a 'haveli' and he has kept chaff, roori, logs of woods etc.in the suit property and he remained in possession of the same till January, 2009, whereas, as stated above, it is in the cross examination of PW-3 Darbari Lal that respondent Jyoti took possession of the suit property in the year 2007.

Thus, appellant themselves are not sure as to when the respondents took possession of the suit property.

Further more, all the witnesses examined by the appellants are closely related to them.

PW-1 Bachni Devi has not come present for her cross- examination, whereas PW-3 Darbari Lal is the fiRs.cousin of appellant No.1 and PW-4 Sadari Lal is the husband of Bachni Devi appellant.

No respectable person of the village like Sarpanch, Panch or Numberdar etc.has been examined by the appellants”.After hearing counsel for the appellants and appreciation of evidence brought on record, I do not find any error in the observation made by the Appellate Court while dismissing the appeal and since finding of fact has been recorded by both the Courts below against the plaintiffs, the same would not be interfered with without there being any question of law.

For the reasons recorded above, the present appeal is found to Ram Rikhi 2014.03.20 17:20 I attest to the accuracy and integrity of this document Rs.No.1372 of 2012 (O&M) 4 be without any merit and the same is hereby dismissed.

12.3.2014 (Rakesh Kumar Jain) RR Judge Ram Rikhi 2014.03.20 17:20 I attest to the accuracy and integrity of this document