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2003 DIGILAW 1301 (PNJ)

Ram Kala v. Giani

2003-09-17

G.S.SINGHVI

body2003
Judgment G.S.Singhvi, J. 1. The appeal is directed against judgments and decrees dated 22.9.1981 and 17.8.1982 passed by Sub Judge, IInd Class, Gurgaon in Case No. 203 of 24.12.1980 and District Judge, Gurgaon in Civil Appeal No. 71/13 of 5,10.1981. 2. The facts necessary for deciding the appeal are that the plaintiff-respondent filed a suit for permanent injunction against the defendant-appellant by alleging that he is owner in possession of the vacant piece of land marked as ABCD in the plan annexed with the plaint which forms part of Khewat No. 1, Khata No. 1, Khasra No. 319 situated within the abadi of village Jaurasi, Tehsil Nuh, District Gurgaon. The ancestors of the defendant-appellant were co-sharers in khasra No. 319 and they had utilised their share by constructing a pucca house marked as CEFG in the site plan. The remaining land which formed part of his share was being used for storing manure and fodder, but the defendant-appellant had no right, title or interest over it. Notwithstanding this, he was trying to forcibly take possession of his share of the land. 3. On notice, the defendant-appellant filed written statement to contest the suit. He raised the following preliminary objections:- (1) The suit was time barred. (2) The suit was not maintainable in its present form. (3) The suit had not been properly valued. 4. The defendant-appellant then averred that he was in possession of the suit property and had acquired ownership by adverse possession. He denied the assertion made in the plaint that the plaintiff-respondent was the owner of the portion marked as ABCD or that it was part and parcel of the agricultural land bearing khewat No. 1, khata No. 1, Khasra No. 319. 5. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is the owner in possession of the suit land marked by letters ABCD mentioned in para 1 of the plaint? OPP. 2. Whether the suit land forms part of Khewat No. 1 khata No. 1, Khasra No. 319? OPP. 3. Whether the suit is time barred? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit has not been valued properly for the purposes of court fee and jurisdiction? OPD 6. Whether the defendants have become owners of the suit land by adverse possession? 7. Relief. 6. OPP. 3. Whether the suit is time barred? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit has not been valued properly for the purposes of court fee and jurisdiction? OPD 6. Whether the defendants have become owners of the suit land by adverse possession? 7. Relief. 6. On a consideration of the pleadings and evidence of the parties, the learned Sub Judge, IInd Class decided issue Nos. 1,3,4 and 6 against the defendant-appellant and issue No. 2 against the plaintiff-respondent. Accordingly, she decreed the suit and restrained the defendant-appellant from interfering with the possession of the plaintiff-respondent over the suit land. 7. The appeal filed by the defendant-appellant was dismissed by District Judge, Gurgaon. He confirmed the finding recorded by the trial Court that the plaintiff-respondent was the owner in possession of the disputed land and the defendant-appellant had no right to interfere with his possession. 8. Feeling dissatisfied with the judgment and decrees of the Courts below, the appellant has filed this appeal. 9. At the out-set, I deem it proper to mention that the memo of appeal is defective, in-as-much as, the appellant has not framed the substantial questions of law which arise for consideration by this Court. While admitting the appeal, the learned Single Judge too did not frame any question of law. Therefore, in view of law laid down by the Supreme Court in Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs. and Ors., (2001-2)128 P.L.R. 492 (S.C.), I would have dismissed the appeal. However, at the commencement of the arguments, Shri Rajinder Goyal filed a statement showing that following substantial questions of law arise for consideration by the Court:- "1. Whether throwing of manure and fodder is sufficient to prove possession? 2. Whether in the absence of any documentary proof, the possession of open land can be proved? 3. Whether an injunction can be claimed against a co-sharer? 4. Whether the learned courts below erred in law and misread, misconstrued and misinterpreted the oral as well as documentary evidence available on the record as also the mandatory provisions of law? 5. Whether in the absence of any documentary proof, or other proof of ownership, ownership of a person can be declared? 6. 4. Whether the learned courts below erred in law and misread, misconstrued and misinterpreted the oral as well as documentary evidence available on the record as also the mandatory provisions of law? 5. Whether in the absence of any documentary proof, or other proof of ownership, ownership of a person can be declared? 6. Whether in view of findings in para 22 of the judgment of Lower Appellate Court, the plaintiff could still be held to be owner in possession of land in dispute ?" 10. I have heard Shri Rajinder Goyal and carefully perused the record. 11. While considering issue No. 1 learned Sub Judge referred to the statement made by the plaintiff-respondent as PW1, who stated that the land in dispute belong to him; that he and the predecessor of the defendant-appellant were joint co-sharers, but, later on, the property was partitioned and they constructed house on their share of the land. He further stated that he was using the plot for storing manure and for tethering the cattle. The trial Court then referred to the statements of Mani Ram - PW2 Phoolu - PW3, Kishan Lal - PW4, Devi Sahai - PW5 and Phoolu - PW6, who supported the version of the plaintiff-respondent that he was owner of the suit land measuring 71 x 65 feet. On his part, the defendant-appellant appeared as DW1 and controverted the statement of the plaintiff-respondent. However, in cross-examination, he could not give the description of the suit property. The other witnesses of the defendant-appellant, namely, Sheo Nath -DW2, Shera - DW3 and Ram Swaroop - DW4 could not support his plea that he was having right over the suit land. In view of this evidence, the learned trial Court concluded that the plaintiff-respondent has been able to prove the ownership of the disputed land and granted injunction in favour of the plaintiff-respondent and restrained the defend ant-appellant from interfering with his possession. This was confirmed by the Appellate Court which independently examined the entire evidence and recorded its conclusion in the following words:- "In view of the above scrutiny of the evidence on record and discussion, I record a firm finding that the plaintiff has successfully proved himself to be owner in possession of the plot in dispute whereas the defendant has miserably failed to prove his possession, what to say for more than 12 years. Under these circumstances, I uphold the findings of the learned Sub Court on issues No. 1 and 6." 12. In my opinion, the finding recorded by the Courts below that the plaintiff-respondent was owner in possession of the disputed plot is a pure finding of fact based on a correct appreciation of evidence. I am further of the view that the Courts below did not commit any error by granting injunction to the plaintiff-respondent because the predecessors of the defendant-appellant had taken their share of land and constructed pucca house over it. 13. Hence, the appeal is dismissed. However, it is made clear that the finding re corded by the trial Court shall not prejudicially affect the right of the defendant-appellant in any other pending litigation or the litigation which may be instituted hereinafter in regard to the title of the property in question.