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2010 DIGILAW 1650 (PNJ)

Om Parkash v. Santosh Kumari

2010-05-12

RAKESH KUMAR JAIN

body2010
JUDGMENT Rakesh Kumar Jain, J.:- Defendant No.1. is in second appeal against the judgment and decree of learned First Appellate Court, Panchkula dated 1.4..2010 by which judgment and decree of the trial Court dated 20.3.2007 has been reversed. 2. The case set up by the plaintiff is that she had purchased shop No.60 comprised in area of 30 square yards situated in abadi deh of village Haripur, Sector 4, Panchkula, from Narata Ram son of Dhani Ram and Suresh Chand son of Ronak Ram, vide registered sale deed dated 18.8.1998 for a consideration of Rs.70,000/-. She constructed a residential house on the first floor of the shop , whereas defendant No.1 has installed a Kiosk (wooden khokha) in front of the house of the plaintiff in the phirni of the village blocking the entrance of her house. The matter was brought to the notice of the Sarpanch of the Gram Panchayat, who did not take any action. Consequently, the present suit has been filed for mandatory injunction directing defendant No.1. to remove kiosk (wooden khokha) from the phirni of the village and for permanent injunction from raising any construction or changing the nature of the land/common rasta as shown with letters ABCD in the site plan attached with the plaint. 3. Upon notice, defendant No.1 appeared and filed his written statement on 3.11.1999. Besides taking technical preliminary objections, ownership of the plaintiff over shop No.60 was disputed. It was alleged that shop of defendant No.1 was in existence on the spot since the time immemorial and the plaintiff had raised construction on the common rasta and panchayat land afterwards. Thus, case of defendant No.1. is that he is in possession of the land beneath the shop/kiosk as owner while the plaintiff had encroached upon the public passage. 4. Defendant No.2/Gram Panchayat filed separate written statement on 2.3.2000 alleging that plaintiff is not the owner of the site under sale deed dated 18.8.1998. Defendant No.1. was running a petty shop since long. The Gram Panchayat had advised both the parties to get the disputed land demarcated but no one cared for its advice. The Gram Panchayat was proceeded against exparte on 8.3.2007. 5. Plaintiff filed replication to both the written statements reiterating the averments made in the plaint and denied those made in the written statements. 6. On the pleadings of the parties, folowing issues were framed on 27.11.2002:- 1. The Gram Panchayat was proceeded against exparte on 8.3.2007. 5. Plaintiff filed replication to both the written statements reiterating the averments made in the plaint and denied those made in the written statements. 6. On the pleadings of the parties, folowing issues were framed on 27.11.2002:- 1. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for ?OPP 2. Whether the suit is not maintainable?OPD 3. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD 4. Relief. 7. In order to prove her case, plaintiff examined herself as PW1, Harkesh Singh as PW2 and Vinod Kumar Dhul as PW-3. She tendered in evidence copies of sale deed, affidavit, receipt order, site plan and photographs etc. as Exs. P-1 to P-10 and list of unauthorised occupants of Panchayat Land as Mark-A. On the other hand, defendant No.1. examined himself as DW-1 and Ravinder as DW-2, but did not lead any documentary evidence. 8. The trial Court dismissed the suit of the plaintiff, inter-alia, on the ground that she failed to prove her ownership over the land on which she has constructed her shop. 9. Plaintiff preferred the First Appeal alongwith an application under Order 41 Rule 27 of Code of civil Procedure, 1908 (for short, CPC) in order to prove original sale deed of her vendor along with site plan in order to prove her ownership over the shop in question. The said application was allowed on 31.8.2007. Pursuant to that, plaintiff examined Ashwani Pathak, scribe of the sale deed Ex.A1, Jagir Singh attesting witness to the sale deed as AW-2 and Kuldeep Kumar, Registration Clerk, who placed on record original sale deed and original site plan. Defendant No.1. did not adduce any evidence in rebuttal against the additional evidence of the plaintiff and his evidence was closed. 10. While discussing the entire evidence on record including the evidence led by way of additional evidence, learned Appellate Court came to the conclusion that the plaintiff has proved her ownership over the land on which shop No.60 has been constructed. The ownership has been proved on the basis of sale deed Ex.A-1 and sale deed Ex.P-1. It has also been found that defendant No.1. The ownership has been proved on the basis of sale deed Ex.A-1 and sale deed Ex.P-1. It has also been found that defendant No.1. is unable to prove his ownership over the land beneath kiosk (wooden khokha), therefore, the learned Appellate Court came to the firm finding of fact that averment in the written statement by defendant Nos. 1 and 2 that plaintiff is not owner of the land under neath shop No.60 is wrong and that defendant No.1 is the owner of the land under neath his kiosk (khokha) is not proved. The Appellate Court has perused photographs Exs. P-6 to P-9 which have been admitted by the defendant in his cross examination on the basis of which it has been found that kiosk (khokha) constructed by defendant No.1 is just on the entrance door of the shop/house of the plaintiff and is unauthorisedly built. 11. Learned counsel for the appellant has argued that findings recorded by both the Courts below are all perverse, however, he could not refer to any evidence which has been misread by the First Appellate Court. Rather, he has failed to convince this Court about his ownership over the land in question under neath the kiosk (khokha). It has also been observed by learned First Appellate Court that if kiosk (khokha) in question which is alleged to be in existence from the time immemorial, then why it does not have electric connection. Kiosk is found to have been constructed with very poor and inferior quality wood which shows that it is altogether a temporary arrangement made by defendant No.1, who is illegally squatting over the land of the panchayat which infact, is a passage and has blocked virtually the entrance door of the shop/house of the plaintiff. In view of the above, I do not find any error in the judgment of the learned First Appellate Court, nor do I find involvement of any substantial question of law in this appeal as envisaged under Section 100 of CPC. Thus, the present appeal is found to be without any merit and the same is hereby dismissed in limine, but without any order as to costs. ---------------