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2004 DIGILAW 1061 (PNJ)

Genda Ram (Died) through LRs. v. Babu Ram

2004-09-15

HEMANT GUPTA

body2004
JUDGMENT Hemant Gupta, J. - The plaintiff is in second appeal aggrieved against the judgment and decree passed by the First Appellate Court whereby suit for possession filed by the plaintiff was dismissed while accepting the appeal filed by the defendant. 2. The plaintiff has filed suit for possession, inter alia, on the ground that the plaintiff was in possession of the suit land since the time of his forefathers for the last more than 50 years. The suit land has been in actual, continuous possession of the plaintiff or his forefathers and using it as courtyard of his house. It was alleged that the defendant on the strength of power and influence had taken forcible possession of the suit land by taking undue advantage of arrest of the plaintiff and his family members in the year 1978, by raising construction of the boundary wall around the suit land and, thus, the defendant is in illegal possession of the suit land. In view of the said allegation, the plaintiff claimed possession of the land shown by letters ABCD. 3. The defendant contested the claim of the plaintiff on the ground that the property was purchased by him means of registered sale-deed dated 15.6.1964. He has pleaded that he constructed two pucca rooms and one pucca khurli in part of the suit land. Earlier, Kishori Lal was owner in the possession of the same land since time of his forefathers. Therefore, he sold land in favour of defendant. 4. The learned trial Court decreed the suit of the plaintiff but the judgment passed by the trial Court was set aside in appeal. It was found that it is not the case of the plaintiff that he is owner of the property by virtue of purchase. The plea of title was raised on account of plaintiff and his forefathers being in adverse possession of the suit land which remains unsubstantiated. 5. The First Appellate Court has considered the oral testimony of the witnesses produced by the parties. PW-2 Mangal Ram has deposed that Gainda Ram was in possession of bara in question and Babu Ram and Atma Ram had unauthorizedly taken possession thereof. He also deposed that Babu Ram had his separate Bara away from the suit land. 5. The First Appellate Court has considered the oral testimony of the witnesses produced by the parties. PW-2 Mangal Ram has deposed that Gainda Ram was in possession of bara in question and Babu Ram and Atma Ram had unauthorizedly taken possession thereof. He also deposed that Babu Ram had his separate Bara away from the suit land. He admitted in the cross-examination that Babu Ram had constructed two kothas on the suit property towards the east and that on 3 sides there was pucca boundary wall and towards the west it was open. He admitted that he had litigation with Kishori Lal and that Atma Ram and Babu Ram had appeared as witnesses against him and in favour of Kishori Lal. The other witnesses produced by parties, were PW Sukkar Ram and PW-4 Nanha Ram whose testimony was not considered relevant as they were witnesses of removal of trees. Similarly, the statement of PW-5 Hari Krishan, Lambardar, attesting witness of the sale-deed Ex. P-2 was found to be not relevant as he has not deposed about the possession of the plaintiff over the suit property. According to the said witness, property in dispute was lying absolutely vacant before 28.2.1978 and that the suit property is now in possession of Babu Ram. 6. The First Appellate Court returned the finding against the plaintiff holding that the plaintiff has miserably failed to show that he has become owner by way of adverse possession. While considering the statement of PW-6 Isham Singh and PW-7 Gainda Ram, the Court concluded that the plaintiff cannot be said to be in possession of the said property as he has not been able to show that how he has been using the said property or since when he has been in possession thereof as even according to the plaintiff the said property was lying vacant before the defendant constructed boundary wall over the suit property. 7. On the other hand, the First Appellate Court found that the defendant has purchased the suit property from Kishori Lal, vide registered sale-deed dated 15.6.1964, Ex. D-2. Ex. D-3 is the site plan attached to the said sale-deed. Vide this aforesaid sale-deed, Kishori Lal sold one constructed house, as well as, one vacant plot in favour of Babu Ram. The vacant plot is one which is property in dispute in the present case. D-2. Ex. D-3 is the site plan attached to the said sale-deed. Vide this aforesaid sale-deed, Kishori Lal sold one constructed house, as well as, one vacant plot in favour of Babu Ram. The vacant plot is one which is property in dispute in the present case. It has been found that boundaries given in the site plan produced by the defendant Ex. D-1 tally with the boundary given in Ex. D-2 and site plan, Ex. D-3. Site plan, Ex. P-3, shows that towards the north of the said vacant plot was the property of Atma Ram etc. while towards the east was the property of Rati Ram and towards the south was the house of Gainda Ram etc. while towards the west was the gali. In the site plan, Ex. D-1, towards the east of the suit property, the property of Smt. Daropadi Devi which was earlier of Ratti Ram has been shown. Thus, the Court concluded that in case of discrepancy in the area, the property sold can be identified by the boundary and, thus, the defendant proved to be purchaser of the suit property. 8. The learned counsel for the appellant has argued that the vendor of the defendant has not been examined as witness although he was alive at the time when the defendant was leading evidence. Therefore, adverse inference should be drawn against witness. However, the said argument is not tenable. The claim of the defendant is on the basis of registered sale-deed. Such registered sale-deed along with the site plan proved that the property conveyed vide the sale-deed with site plan tally with the site in dispute. Even the site plan produced by the plaintiff Ex. P-1 tally on three sides with the site plan produced by the defendant. 9. The findings recorded by the First Appellate Court are based upon proper appreciation of evidence. It could not be pointed out that any evidence has been misread. I do not find any illegality or irregularity in the finding recorded. No substantial question of law arises for consideration in second appeal. Dismissed. Appeal dismissed.