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2007 DIGILAW 980 (PNJ)

Raghbir v. Chandgi

2007-04-25

VINOD K.SHARMA

body2007
Judgment Vinod K.Sharma, J. 1. The present Regular Second Appeal has been filed against the judgment and decree dated 14.9.1983 passed by the learned Additional District Judge, Rohtak vide which the judgment and decree dated 16.2.1983 passed by the learned Trial Court has been reversed and the suit filed by the plaintiff-respondent for prohibitory injunction was ordered to be decreed. 2. The plaintiff-respondent brought a suit for prohibitory injunction restraining the defendant-appellants from raising any construction over the plot in dispute by claiming it to be his ownership being an ancestral property. 3. The plaintiff set up his claim that he was owner of one plot situated in the area of Village Koyalpur and the same was shown as ABCD in the site plan attached with the plaint and the details were given in para 1 of the plaint. It was further claimed that the defendants wanted to take forcible possession of the plot in dispute by raising construction over the same. 4. The suit was contested by the defendants, who filed the written statement in which they claimed that they were owners of the plot in dispute from the time of their fore-fathers and further that the Mori of their house opened in the plot in dispute. It was also claimed that Parnalas of their house fell in the plot in dispute. It was also claimed that they along with Chellu and Phuse are the owners of plot in dispute. It was further claimed that the Mori and Parnalas existed there for the last more than 21 years. It was also claimed that the plaintiff has no right to the plot in dispute. On the pleadings of the parties, following issues were framed: 1. Whether the plaintiff is owner in possession of the plot mentioned in para 1 of the plaint? OPP 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD. 5. The trial Court decided issue No. 1 against the plaintiff on the basis of spot inspection dated 9.1.1983 in which it was noticed that Parnalas etc. were quite old in age. It was also observed that Rati Ram, PW-5 had admitted that the parnalas were in existence for the last 7/8 years. On this it was presumed that the ease set up by the plaintiff was falsified. were quite old in age. It was also observed that Rati Ram, PW-5 had admitted that the parnalas were in existence for the last 7/8 years. On this it was presumed that the ease set up by the plaintiff was falsified. The trial Court without considering the other evidence recorded a finding that a large number of witnesses were produced by the defendants, who supported the case of the defendants by stating that the defendants are the owners of the property in dispute. Thus, it was concluded that the plaintiff has failed to prove himself to be owner in possession of the plot in dispute. 6. On appeal, the learned lower Appellate Court was pleased to reverse the findings recorded by the learned Trial Court by observing as under: Chandgi Ram plaintiff PW-1, Sohan Lal PW-2 aged 60 years, Lal Chand, Member Panchayat PW-4 aged 35 years ana Ganpat Sarpanch aged 46 years are all residing in village Koyalpur since their birth. They all supported the version of the plaintiff as given in the plaint and stated that suit plot is the ancestral property of the plaintiff and is owned and possessed by him, the plaintiff has raised dole around it and he has been tethering his cattle therein. They categorically denied the suggestion of the learned Counsel for the defendants that the plot is owned or possessed by the defendants or that the cattle of the defendants are tethered in this plot. Sohan Lal PW-2 also stated that a Panchayat of the brotherhood had taken place to resolve the dispute regarding this plot. He admitted the suggestion of the defendants counsel that Dharma, Bihari, Lal Chand etc. had also attended the said Panchayat. It is not the case of the defendants that the Panchayat had resolved the dispute in favour of the defendants regarding the title or possession of the suit plot. The fact thus remains that out of the five witnesses examined by the plaintiff Sohan Lal PW-2 and Lal Chand PW-4 had also attended the panchayat of the brotherhood. No enmity or animus of Sohan Lal, Lal Chand and Rati Ram PWs against the defendants has been suggested much less proved. Admittedly, there is litigation between Ganpat PW-7 Sarpanch of the Gram Panchayat and the defendants. No enmity or animus of Sohan Lal, Lal Chand and Rati Ram PWs against the defendants has been suggested much less proved. Admittedly, there is litigation between Ganpat PW-7 Sarpanch of the Gram Panchayat and the defendants. Even if the testimony of Ganpat PW-5 is ruled out of consideration even then there is absolutely no reason to disbelieve the version of the other PWs. regarding the title and possession of the plaintiff over the suit plot. The learned lower appellate Court also took notice of the fact that Chander DW-3 had admitted that the suit property was under the ownership of the uncle of the plaintiff and, therefore, a presumption was drawn that the same may have fallen to the share of the plaintiff in the family settlement and accordingly findings on issue Nos. 1 to 4 were reversed. 7. Mr. H.S.Gill, learned senior counsel appearing on behalf of the appellants, has challenged the findings recorded by the learned lower appellate Court primarily on the ground that it was not open to the learned lower Appellate Court to have reversed the findings by observing that it was not open to the trial Court to have based the findings on the basis of spot inspection. The contention of the learned Counsel for the appellants was that besides spot inspection, other evidence was also produced on record to show that the defendants were the owners of the property in dispute. In support of his contention, learned Counsel placed reliance on the judgment of the Honble Mysore High Court in the case of Sannagoundara Siddappa V/s. Mahadevappa and Anr. A.I.R. 1964 Mysore 214. 8. I have heard the learned Counsel for the parties and find no force in the contention raised by the learned Counsel for the appellants. The said judgment of Honble Mysore High Court was dealing with the right of easement to the property and in that situation it was held that the Court can on the basis of spot inspection and other evidence always record a finding and the same cannot be said to be vitiated. However, it is not in dispute that merely on the basis of spot inspection no finding can be recorded. 9. However, it is not in dispute that merely on the basis of spot inspection no finding can be recorded. 9. The reproduction of the findings recorded by the learned lower Appellate Court shows that the findings recorded by the learned trial Court have not been reversed on the ground of findings being recorded on the basis of spot inspection, but also on the ground that the plaintiff by producing cogent evidence proved his ownership and possession over the plot in dispute. It also took notice of the admission of the witnesses produced by the defendant - appellants. The findings recorded by the learned lower Appellate Court are based on evidence produced on record which are not open to challenge in Regular Second Appeal. Dismissed.