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2010 DIGILAW 557 (PNJ)

Rakesh Kumar v. Sohan Lal

2010-01-22

L.N.MITTAL

body2010
Judgment L.N.MITTAL, J. 1. This is application for impleading legal representatives of respondent no.1 Sohan Lal (since deceased ). It is alleged that his sons Dharam pal @ Dhammi and daughter Krishna Kumari, mentioned in paragraph 3 of the application are his only legal heirs. The application is accompanied by affidavit. Accordingly, the application is allowed and Dharam Pal @ Dhammi and krishna Kumari, as mentioned in paragraph 3 of the application, are ordered to be impleaded as legal representatives of respondent no.1 Sohan Lal (since deceased ). Necessary correction in `memo of Parties be made by the Office. Main appeal : 2. Rakesh Kumar plaintiff, having been unsuccessful in both the courts below, has filed the instant second appeal. The plaintiff alleged that sohan Lal defendant no.1 delivered possession of the suit property to the plaintiff vide agreement dated 19.02.1994 after receiving sale consideration of rs.5,000/-. Plaintiffs sister Kaushalya Devi is using the suit property for running a Bhatthi (hearth) in it. However, the defendants threatened to dispossess the plaintiff from the suit property. So, the plaintiff sought permanent injunction restraining the defendants from interfering in the possession of the plaintiff over the suit property and from dispossessing the plaintiff therefrom in any manner. The defendants contested the suit and pleaded that plaintiff is not in possession of the suit property and rather one Satya is owner as well as in possession thereof. Defendant no.1 has no concern with the suit property, nor he agreed to sell the same to the plaintiff. Plaintiffs father Piara Lal was owner of the suit property and he sold it to Satya and delivered possession thereof to her. However, portion shown in green colour in the site plan, attached with the written statement, is in possession of defendant no.2. 3. I have heard learned counsel for the appellant and perused the case file. 4. The plaintiff has miserably failed to prove his case. According to plaintiffs version in the plaint, his sister Kaushalya Devi is using the suit property. However, Kaushalya Devi has not been examined as witness. Therefore, strong adverse presumption arises against the plaintiff. Plaintiff examined his mother Kailash Kumari, who admitted that Satya used to run Bhatthi in the suit property. The plaintiff has not explained as to how defendant no.1 came in possession of the suit property when Satya was in possession thereof. However, Kaushalya Devi has not been examined as witness. Therefore, strong adverse presumption arises against the plaintiff. Plaintiff examined his mother Kailash Kumari, who admitted that Satya used to run Bhatthi in the suit property. The plaintiff has not explained as to how defendant no.1 came in possession of the suit property when Satya was in possession thereof. Consequently, when defendant no.1 himself was not in possession of the suit property, he could not have delivered its possession to the plaintiff under the alleged agreement. Ownership of defendant no.1 over the suit property is also not established and therefore, defendant no.1 could not have sold it to the plaintiff. 5. From the evidence, it appears that Sohan Lal defendant no.1 was uncle of the plaintiff and after death of plaintiffs father, plaintiffs mother kailash Kumari lived as wife of Sohan Lal with him. The alleged agreement dated 19.02.1994 (Ex. P-1) purports to be a sale deed for Rs.5,000/-, but is unregistered document. Plaintiff and his mother stated that they, along with kaushalya Devi, are in possession of the suit property. However, in the plaint, it was pleaded that only Kaushalya Devi was running Bhatthi in the suit property and was in possession thereof. The plaintiff also admitted that defendant no.1 was in possession of the suit property before his death. It means that at the time of filing of the suit, defendant no.1 was in possession of the suit property and not the plaintiff or his sister. Defendants have alleged that Satya was in possession of the suit property. This fact has been admitted by plaintiffs mother Kailash Kumari in the witness box. Thus, from the plaintiffs own evidence, it becomes manifest that the plaintiff could not prove his possession over the suit property nor possession of his sister thereon. There is no illegality or infirmity in the concurrent finding of the courts below, which is based on appreciation of evidence. The said finding is not perverse or illegal in any manner. No question of law, much less substantial question of law, arises for determination in the instant second appeal. 6. In view of the aforesaid discussion, I find no merit in the instant second appeal, which is accordingly dismissed in limine.