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2005 DIGILAW 725 (PNJ)

Sushila Devi v. Vijay Kumar

2005-07-11

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is defendants appeal filed Under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below holding that they or their grandson Hitesh Bandhu can not be permitted to raise construction on the municipal land shown on the site plan with Letters HIJK on the red dotted line. The plan tendered in evidence by the plaintiff-respondents Ex.PW-3/A is also supported by the plan Ex.P-2 presented by the Local Commissioner. Both the plans show the open chowk surrounded by the property of various persons out of which a portion is claimed by the defendant-appellants to be owned by them. It is further appropriate to mention that the plan sanctioned by the Municipal Committee for the construction in favour of grandson of the defendant Hitesh Bandhu has been cancelled by the Deputy Commissioner, Mahendergarh at Narnaul and the case was remanded back to the Municipal Committee. On an appeal filed by the plaintiff-respondents, order dated 30.12.1995 has been placed on record as Ex.P-4. Thereafter the Municipal Committee has refused to sanction the plan submitted by Hitesh Bandhu and the order has been placed on record as Ex.D-1. It is in the these circumstances that the Courts below have granted the prayer made by the plaintiff-respondents restraining defendant-appellants from interfering or to raise any construction over the portion marked with Letters ABCDEFGHIJ as the same is an open area and is not owned by the defendant-appellants. Both the Courts below have also discarded the collusive decree suffered by the defendant-appellants in favour of their grandson Hitesh Bandhu claiming that Hitesh Bandhu had become owner of the disputed land. The reason for discarding the collusive decree Ex.D-2 is that the defendant-appellants have failed to produce any evidence that they had a valid title to transfer in favour of their grandson Hitesh Bandhu and that they have rightly suffered a collusive decree Ex.D-2 transferring the title to their grandson. The District Judge has noticed the general tendency of the people to grab the common property after holding that the grandson of the defendant-appellants or the defendant-appellants themselves have not been proved to be the owner. The views of the District Judge are discernible from a perusal of paras 20 and 21 of his judgment which reads as under:- "20. The District Judge has noticed the general tendency of the people to grab the common property after holding that the grandson of the defendant-appellants or the defendant-appellants themselves have not been proved to be the owner. The views of the District Judge are discernible from a perusal of paras 20 and 21 of his judgment which reads as under:- "20. People have a great tendency now-a-days to grab the common property, particularly when the same is adjoining these (their ?) houses. Sometimes municipal committee and its officials turn a blind eye to such attempts of the individuals to usurp the municipal property. What a vigilant citizen of the town could do has been done in this case by Vijay Kumar respondent No.l. The defendants or their grandson could not be deemed to be in possession of the disputed site which is an open piece of land. A piece of land would be deemed to be open, even if some sticks are fixed in the same. The person who has fixed the sticks in the open land would not be deemed to be in possession of the same. Possession of such open site goes with the title of the same and the defendants have nothing with them to prove their title or title of their grandson over the suit property. 21. it is true that a site plan is not a document of title but taken with other evidence, it can provide some facts necessary to raise presumption as is available in this case. The defendants or their grandson cannot be held to be in possession of the disputed site and the onus to prove the ownership over the site in dispute cannot be said to have been discharged by the defendants. The defendants who claim ownership of the site in dispute to be vesting in their grandson had to lead evidence to prove their ownership over the site in question and they have failed to lead evidence to prove this fact. In the absence of the proof of title of defendants over the site in question it cannot be held that Hitesh Bandhu is owner of the same. So, none of the two authorities cited by the learned counsel for the appellants helps them in any way." 2. In the absence of the proof of title of defendants over the site in question it cannot be held that Hitesh Bandhu is owner of the same. So, none of the two authorities cited by the learned counsel for the appellants helps them in any way." 2. Having perused the judgments of both the Courts below, I am of the considered view that no interference of this Court Under Section 100 of the Code would be warranted because no substantive question of law has been raised for determination. It is trite to observe that in the absence of a question of law, an appeal cannot be admitted Under Section 100 of the Code. The question with regard to onus framed in the Memorandum of Appeal would pale into insignificance because it is now well settled that once the parties to a suit have led evidence then the question of onus would become academic. In that regard, reliance could be placed on the judgments of the Supreme Court in the case of Union of India and Ors. V/s. Sugauli Sugar Works (P) Ltd., AIR 1976 SC 1414; Cox and Kings (Agents) Ltd. V/s. Their Workmen and Ors., AIR 1977 SC 1666 Sushil Kumar V/s. Rakesh Kumar, 2003 8 SCC 673; Therefore, the appeal cannot be admitted. For the reasons stated above, this appeal fails and the same is dismissed.