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2006 DIGILAW 3261 (PNJ)

Sheela Wanti v. Gurcharan Singh

2006-08-10

MAHESH GROVER

body2006
Judgment , J. 1. The defendants-appellants have filed the present appeal against judgment and decree dated 20.3.2002 passed by Additional District Judge, Fatehabad. 2. Briefly stated the facts of the case are that the plaintiffs respondents filed a suit for permanent injunction seeking to restrain the appellants from interfering in their peaceful possession over the suit property of which, it was alleged, they were the owners in possession as their predecessors-in-interest were also in possession of this prorpety for more than 100 years. The land of the appellants was adjoining to the land of the respondents and in the garb of enjoying their property, they were interfering in the peaceful possession of the appellants over the suit property. 3. The appellants, who had entered into the defence, stated that the suit land was part of village Ratia and was owned by Biswedars of the village and the predecessor-in-interest of appellant No.4 was also one of the Biswedars and consequently, they were in possession of the property which now falls in Ward No.2 of Municipality of Ratia. It was further contended that respondent No.4randhir Singh had sold the suit land to Parmod Kumar (present appellants are legal heirs of said Parmod Kumar) and Bikar Singh, respondent No.3, for a sum of Rs.50,000/- vide registered sale deed dated 11.6.1993. The site plan was got sanctioned from the Municipal Committee and construction had been raised on the suit property by the appellants. 4. Broadly based on the above averments, the trial Court framed the following issues: 1. Whether the plaintiffs are owners in possession of suit property described in the head note of plaint? OPP 2. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP 3. Whether defendants No.1 and 2 are bona fide purchasers of suit property for consideration, and without notice? OPD 4. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the plaintiffs have no cause of action to file the present suit? OPD 6. Whether the suit is bad for mis-joinder of necessary parties? OPD 7. Whether the defendants are entitled to special costs under Sec.35-A of the C. P. C. OPD 8. Relief.5. Whether the plaintiffs have no locus standi to file the present suit? OPD 5. Whether the plaintiffs have no cause of action to file the present suit? OPD 6. Whether the suit is bad for mis-joinder of necessary parties? OPD 7. Whether the defendants are entitled to special costs under Sec.35-A of the C. P. C. OPD 8. Relief.5. The parties led evidence in support of their respective cases and after perusing the same, the trial Court dismissed the suit of the plaintiffs respondents, but in appeal filed by them, the lower Appellate Court reversed the findings of the trial Court. This has resulted in the present appeal having been filed by the defendants-appellants.6. The sole contention raised by the learned Counsel for the appellants was that the plaintiffs-respondents had failed to prove that they were the owners in possession of the suit property and the lower Appellate Court, while reversing the well reasoned judgment of the trial Court, had proceeded on the assumption that the appellants had failed to prove their case and went o to record findings against them, although it is settled proposition of law that the person, who comes to the Court, is to prove his case in the positive and is to stand on his own legs.7. No one has appeared for the respondents despite the case having been called twice.8. I have considered the submissions of the learned Counsel for the appellants, which are based on the record of the case. 9. The admitted case of the parties is that earlier the suit property used to fall within the Lal Lakir of the abadi of village Ratia and now, it falls in Ward No.2 of Ratia Municipality. The respondents have claimed that they were in continuous possession of the suit property for the last 100 years as earlier their predecessors-in-interest were in possession of this land. The respondents had produced on record the photographs showing their possession and the photographer was produced as PW1, but he was not cross-examined on the aspect whether the photographs were false or not and, therefore, it should be taken that the appellants had accepted the statement of PW1 to be correct. The photographs were proved on the record and were pointer to the fact that the respondents were in possession of the suit property. The photographs were proved on the record and were pointer to the fact that the respondents were in possession of the suit property. Apart from this, there were Exhibits P1 to P5 which were the negatives and the envelope which shows the name of Harpreet Singh son of Gurcharan Singh, resident of House No.530, Ward No.6, to establish that they were residing in the suit property. No other record was produced by them to establish their possession even though their own case was that their possession was more than 100 years old. Jamabandis for the years 1962-63 (Exhibit P14) and 1988-89 (Exhibit P12) reflect that the respondents had land comprised in khasra Nos.515/2, 515/7, 515/8 and 631. As per both the jamabandis, khasra Nos.515/2, 515/7 and 515/8 are Gair Mumkin Makaan. 10. This only goes to prove that the respondents were not cultivating any land in Ratia. Thereafter, except for the oral statements of the witnesses, no worthwhile evidence was produced by the respondents to substantiate their case. 11. The respondents, on the other hand, had also failed to produce any evidence on record. They were claiming their possession on the basis of sale deed dated 11.6.1993, copy of which is Exhibit D1 which was purported to have been executed by Randhir Singh, but no evidence was produced to prove that Randhir Singh was the owner of the land at the time of execution of the sale deed. Be that as it may, it was for the respondents to prove their case in the affirmative and since no creditable evidence was produced by them, the lower Appellate Court was clearly in error in recording a finding in their favour on the premise that the appellants had failed to prove their case. 12. The question of law which would arise in the case is, "whether the findings recorded by the Court below which are contrary to the record and are perverse can be sustained in the eyes of law?" 13. The Supreme Court in the judgments reported as Govindaraju V/s. Mariamman and (2005) 12 S. C. C.270 -Harjeet Singh and Anr. V/s. Amrik Singh and Anr. , has held that where the findings recorded by the Courts below are perverse, they can be interfered with in a Regular Second Appeal. 14. The Supreme Court in the judgments reported as Govindaraju V/s. Mariamman and (2005) 12 S. C. C.270 -Harjeet Singh and Anr. V/s. Amrik Singh and Anr. , has held that where the findings recorded by the Courts below are perverse, they can be interfered with in a Regular Second Appeal. 14. In my opinion, the findings recorded by the lower Appellate Court in favour of the respondents are totally perverse as it was the bounden duty of the respondents, who had come to the Court, to prove their case in the affirmative and since that was not done, the only course open to the Court was to answer the claim of the respondents in the negative. 15. For the reasons mentioned above, the appeal is accepted, the judgment and decree of the lower Appellate Court is set aside, the judgment and decree of the trial Court is upheld and the suit of the plaintiffs respondents shall stand dismissed. .