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2006 DIGILAW 3662 (PNJ)

Labh Singh v. Damyanti Devi

2006-09-29

NIRMAL YADAV

body2006
JUDGMENT Nirmal Yadav, J. - This is plaintiffs appeal against the judgment and decree dated 17.7.1993 passed by the learned Additional District Judge, Ropar, vide which the judgment and decree dated 7.12.1989 passed in favour of the plaintiff-appellants was reversed and their suit had been dismissed. 2. Briefly stated the facts of the case are that Shobha Ram, predecessor-in- interest of the plaintiff-appellants had purchased a plot along with adjoining property vide sale-deed dated 11.11.1895 from Smt. Ralli widow of Nathu Ghumiar and since then, the plaintiffs predecessor-in-interest and thereafter the plaintiffs are in possession of the property in question. It is further pleaded that the defendant/respondents in connivance with the local police initiated proceedings under Section 145 Criminal Procedure Code with regard to a part of property on 10.3.1983. On 9.3.1984, S.D.M. Ropar, without recording any evidence, declared the defendants predecessors-in-interest Rakha Ram and Basant Kaur to be in possession of a part of the property. In pursuance of the said order, Rakha Ram and his wife entered into forcible possession of the property in dispute with the intervention of the local police. After their death, defendants are in possession of the suit property. 3. Suit was contested by the defendant-respondents mainly on the ground that the boundaries of the suit property mentioned in the plaint do not tally with the boundaries as existing at the spot. It is further pleaded that the defendants are the owners in possession of the property and the plaintiffs neither purchased the suit property from Smt. Ralli as stated by them nor plaintiffs or their predecessor-in-interest have ever been in possession of the suit property. According to the defendants, S.D.M. Ropar found the defendants in possession of the property in the proceedings under Section 145 Criminal Procedure Code 4. The trial Court after taking into consideration the pleadings of the parties, framed the following issues :- 1. Whether the plaintiffs are owners of the property in suit as alleged in the plaint ? OPP 2. Whether defendants are in illegal possession of the property in suit ? OPP 3. Whether plaintiffs are estopped from filing the suit ? OPD 4. Whether suit is properly valued for the purpose of Court fee ? OPP 5. Relief. 5. The trial Court decided all the issues in favour of the plaintiffs and decreed the suit vide judgment and decree dated 7.12.1989. OPP 3. Whether plaintiffs are estopped from filing the suit ? OPD 4. Whether suit is properly valued for the purpose of Court fee ? OPP 5. Relief. 5. The trial Court decided all the issues in favour of the plaintiffs and decreed the suit vide judgment and decree dated 7.12.1989. Aggrieved by the said judgment and decree, defendant-respondents filed appeal, which was accepted by the First Appellate Court, vide judgment and decree dated 17.7.19993 against which plaintiff-appellants have come up in the present appeal. 6. I have heard learned counsel for the parties and have gone through the records very carefully. 7. Learned counsel for the plaintiff-appellants, at the very out-set argued that Shobha Ram, predecessor-in-interest of the plaintiff-appellants had purchased the suit property along with adjoining property vide registered sale-deed dated 11.11.1895. Certified copy of the said sale-deed is Ex. P-2 on record. It is argued that the sale-deed being more than 30 years old, therefore, certified copy is admissible in evidence without any formal proof and as such Ex. P-2 is liable to read in evidence as if the said document is original. He further argued that PW-3 Sarwan Singh has proved the execution of the sale-deed. He categorically stated that Shobha Ram purchased the suit property from Ghumiars of the village and since then Shobha Ram and his successors have been in possession of the suit property as owners. One of the plaintiffs, namely, Niranjan Singh PW-4, also corroborated the statement of PW-3 Sarwan Singh. The learned counsel further argued that in the statement Ex. P-3 of Rakha Ram, made in the earlier suit filed by the plaintiffs, it has been admitted by him that he had taken the help of the police for taking possession of the suit property. He also referred to the statement of Dalip Singh, who appeared as DW-2 in the said suit, to say that DSP Kehar Singh had come to the village about 1-1/2 years ago regarding this very property. It is further stated that the said DSP got the possession delivered to Rakha Ram. It is argued that these facts clearly show that Rakha Ram, father of the defendant-respondents, was put in possession of the suit property by the police. 8. On the other hand, learned counsel for the defendant-respondents argued that the plaintiffs have failed to prove their possession as well as the ownership. It is argued that these facts clearly show that Rakha Ram, father of the defendant-respondents, was put in possession of the suit property by the police. 8. On the other hand, learned counsel for the defendant-respondents argued that the plaintiffs have failed to prove their possession as well as the ownership. The very document relied upon by the plaintiffs is not admissible. Sale-deed Ex. P-2 is merely attested copy of the original. Neither the original sale-deed nor its certified copy has been placed on record. The learned counsel argued that the defendant-respondents have categorically denied the execution of any sale-deed and in such a situation, proof as required under Section 67 of the Evidence Act, must be furnished. It is further argued that the sale-deed is a registered document. The Registering Officer has also not made any endorsement nor the execution of the sale-deed has been proved as required under Section 67 of the Evidence Act. There is no other satisfactory evidence to prove the execution of the original sale-deed dated 11.11.1985. No permission to lead secondary evidence was obtained from the Court, therefore, the plaintiffs have failed to prove the execution of the original sale-deed by the executant. The testimony of Sarwan Singh does not, in any way, prove the execution of the sale-deed. He is neither the scribe nor the attesting witness of the sale-deed. He has simply stated that Shobha Ram was known to him. When cross-examined, the boundaries stated by him do not tally with the boundaries in the plaint. 9. On careful consideration of the rival submissions, I do not agree with the arguments of learned counsel for the appellants. To prove the ownership of plaintiff-appellants, the only document is the sale-deed Ex. P-2. First of all, the document has not been proved as per provisions of Section 67 of the Evidence Act. Sale-deed is a registered document. However, there is no satisfactory evidence to prove the execution of this document even by way of secondary evidence under Section 65 of the Evidence Act. The registering authority has not made any endorsement so that the execution of the document could be proved as required by Section 67 of the Evidence Act. Secondly, the boundaries mentioned in the sale-deed do not at all tally with the boundaries mentioned in the plaint. The registering authority has not made any endorsement so that the execution of the document could be proved as required by Section 67 of the Evidence Act. Secondly, the boundaries mentioned in the sale-deed do not at all tally with the boundaries mentioned in the plaint. The boundaries mentioned in the sale-deed are as under :- North : Throughfare South : Street East : Residences of Ghumiars West : Vacant plot. However, in the plaint, the boundaries of the disputed property are mentioned as under :- North : Bazar and new market South : Room of Pritam Singh and house of Arjan Singh East : Shop of Pritam Singh s/o Uttam Singh West : Shop and house of Babu Ram. 10. The plaintiffs have miserably failed to co-relate the property purchased vide sale-deed Ex. P-2. The boundaries mentioned in the plaint are totally different than the boundaries mentioned in the sale-deed. Even a perusal of the statement of one of the plaintiffs, namely, Niranjan Singh PW-4, shows that the suit property is different than the property mentioned in sale-deed Ex. P-2. According to him, suit property is part of the property purchased by his predecessor from Smt. Ralli. As per the measurements given in the sale- deed, the suit property is 35 x 43, whereas Niranjan Singh stated that he does not remember the dimensions of the property which his father had purchased from Ralli. He could not even disclose the total area of their property. The statement of Niranjan Singh that the suit property is a part of the property purchased by his grand-father is not at all proved on record. Accordingly, there is nothing on record to prove that the suit property is the same which is stated to have been purchased by Shobha Ram, predecessor-in- interest of the plaintiff-appellants from Ralli. It is the admitted fact that now the defendant-respondents are in possession of the suit property since the possession was delivered to them in proceedings under Section 145 Criminal Procedure Code In view of my above discussion, there is no substance in the appeal filed by the plaintiff-appellants, which is hereby dismissed. Appeal dismissed.