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2004 DIGILAW 151 (PNJ)

Dharam Pal v. Shanti Devi

2004-02-11

VINEY MITTAL

body2004
Judgment Viney Mittal, J. 1. The plaintiff is in appeal. He filed a suit for possession. It was claimed by him that he was the owner in possession of the land in dispute. The plaintiff as well as the defendants are the owners of 1/2 share of a house. It was further claimed that the defendants had encroached upon some land belonging to the plaintiff after constructing a wall there forcibly. 2. The suit was contested by the defendants. It was claimed that the suit was barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure. On merits, it was denied that they had encroached upon any portion of the property belonging to the plaintiff. They also denied the joint ownership of the property alongwith the plaintiff. The defendants pleaded that Shanti Devi, defendant No. 1 had purchased a specific portion of the property in question and as such she was exclusive owner of the aforesaid property. 3. The learned trial Court, on the basis of evidence led by the parties, held that the plaintiff had failed to prove that he was the owner of the property in dispute. It was further held that in fact the plaintiff failed to produce on record the sale deed on the basis of which he was claiming the ownership and alleging the encroachment by the defendants. On the basis of the aforesaid findings, the suit filed by the plaintiff was dismissed. 4. The matter was taken up in appeal by the plaintiff. The learned first appellate Court re-appraised the entire evidence. On such re-appraisal, the learned first appellate Court also found that the plaintiff had not been able to prove on the record his ownership of the disputed property and the factum of encroachment by the defendants. In fact, during the pendency of first appeal, the plaintiff moved an application under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence. The aforesaid permission was not granted and the application was dismissed. 5. On the basis of existing evidence on record, the claim of the plaintiff was rejected. Accordingly, his appeal was dismissed. 6. I have heard Shri B.R. Mahajan, the learned counsel for the appellant and Ms. Alka Sarin, the learned counsel for the respondents and with their assistance have also gone through the record of the case. 7. 5. On the basis of existing evidence on record, the claim of the plaintiff was rejected. Accordingly, his appeal was dismissed. 6. I have heard Shri B.R. Mahajan, the learned counsel for the appellant and Ms. Alka Sarin, the learned counsel for the respondents and with their assistance have also gone through the record of the case. 7. Shri B.R. Mahajan, the learned counsel for the appellant has primarily assailed the judgment of the learned first appellate Court on the ground that the permission to lead additional evidence sought by the plaintiff-appellant had wrongly been denied. On that basis, it is submitted that if the additional evidence would have been allowed, then the plaintiff would have been able to prove his case. I find myself unable to agree with the same. In fact, the learned first appellate Court has specifically noticed the fact that the additional evidence sought to be produced by the plaintiff would also mean examination of the witnesses afresh and re-opening of the trial of the case. Accordingly, it was held that there was no justification to allow the application for additional evidence. Thus, the judicial discretion exercised by the learned first appellate Court is not shown to be erroneous in any manner. It is not in dispute that the evidence on record does not support the case of the plaintiff. Neither he is proved to be owner of the property nor he has been able to prove that there is any encroachment made by the defendants. 8. Nothing has been shown that the findings recorded by the learned first appellate Court suffer from any infirmity or are contrary to the record. 9. No question of law, much less any substantial question of law, arises in the present appeal. 10. In view of the aforesaid discussion, I find no merit in the appeal and the same is accordingly dismissed with no order as to costs.