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2011 DIGILAW 1536 (PNJ)

Gurmit Singh v. Shinda Singh

2011-08-08

KANWALJIT SINGH AHLUWALIA

body2011
JUDGMENT Mr. Kanwaljit Singh Ahluwalia, J.: - The present Regular Second Appeal has been filed by the plaintiff against the judgment of reversal dated 20.2.2009 whereby the lower Appellate Court had set aside the judgment and decree dated 21.9.2006 passed by the trial Court vide which suit of the plaintiff was decreed. 2. Plaintiff had instituted a suit for possession of land measuring about 5 marlas (24'-9" x 40'), detail and description of which has been given in the head note of the plaint. It was pleaded in the suit that father of the plaintiff, namely, Jagat Singh had filed a Suit No.280 dated 5.1.1984 against Atma Singh son of Inder Singh, Jaila son of Karma, Sadhu son of Shami, Gian, Geeto @ Gulwant daughters of Bhagat Singh and Buta Ram, the then Sarpanch son of Dalip Chand of Village Razapur, Tehsil and District Kapurthala for permanent injunction restraining them from interfering in possession of his house boundaries of which were described in para 1 of the plaint. It was averred that total area in possession of father of the plaintiff was measuring about 11 marlas. The defendants to that suit contested the same. In that suit, father of the plaintiff had averred that house in dispute was in his ownership and was more than 30 years old. The house consisted of three rooms, one kitchen, cattle shed and open courtyard. Furthermore, as per the averments made in the suit, father of the plaintiff had planted 40/45 trees and defendants to that suit had no link with the property. Defendants to that suit, in the reply filed, raised a plea that they were owners in possession of the suit property because the same was given to them by the Gram Panchayat of the village. They had questioned the ownership and possession of the father of the plaintiff. A specific issue was framed as to whether the father of the plaintiff was owner in possession of the demised shop. On 24.8.1985, suit filed by father of the plaintiff was decreed as he was able to prove that he was in possession of the suit property. Accordingly, a decree for possession was passed in favour of father of the plaintiff and against the defendants. 3. It was further pleaded that father of the plaintiff died in the year 1995. At that time, the plaintiff was in Government service. Accordingly, a decree for possession was passed in favour of father of the plaintiff and against the defendants. 3. It was further pleaded that father of the plaintiff died in the year 1995. At that time, the plaintiff was in Government service. He is the only surviving son of his father. His one brother, namely, Ajit Singh had predeceased him. His father had been living in the house which he had constructed. Since, the parents of the plaintiff were very old, defendant to this suit took forcible possession of the house of the father of the plaintiff of area measuring about 5 marlas (24'-9" x 40') some where in the year 1995. It was further averred that they had forcibly constructed a room in the portion of the property. Thus, cause of action had arisen to the plaintiff in the year 1995. Hence, suit in question for possession of the land measuring 5 marlas was filed. 4. Upon notice, defendant filed the written statement, in which he raised numerous preliminary objections regarding maintainability of the suit; locus standi of the plaintiff and for giving wrong facts. It was further stated that the plaintiff had submitted an application to S.H.O., Police Station Sadar Kapurthala, on which a compromise was effected on 6.8.2001 and a writing was prepared. On merits, it was stated that father of the plaintiff had given possession of the suit property and had also given a writing. 5. Plaintiff filed a replication, in which he denied the contents of the written statement and reiterated as to what was stated in the plaint. Regarding the compromise arrived at by the S.H.O., Police Station Sadar, Kapurthala, it was submitted that an application was submitted and that it was amicably resolved that defendant will not abuse the plaintiff. It was denied that father of the plaintiff had given any writing. It was further stated that if any writing is there, same is a forged and fabricated document. 6. After completion of the pleadings, the trial Court formulated the following issues:- 1. Whether plaintiff is owner of the property in dispute and entitled for its possession from the defendants? OPP 2. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether plaintiff is owner of the property in dispute and entitled for its possession from the defendants? OPP 2. Whether the suit has been properly valued for the purpose of court fee and jurisdiction? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD 5. Relief. 7. Plaintiff himself appeared as PW3 and examined other five witnesses. Defendant also led his evidence and himself appeared as DW3. 8. The trial Court after considering the pleadings and the evidence led by the parties concluded that earlier father of the plaintiff had instituted a suit, took into consideration the judgment rendered in that suit Ex.P4 and decree sheet Ex.P5. The Court also took into consideration the writing Ex.D1 relied upon by the defendant and the testimony of Pargan Singh DW1 who had stated that the dispute between the defendant and Jagat Singh, of the plaintiff was amicable resolved and on payment of Rs.9,000/- by the defendant, a writing was scribed. That writing was proved as Ex.D1 and it contained the signatures of Jagat Singh, father of the plaintiff. The Court further noticed that DW2 Gurdial Singh, Sarpanch of Village Razapur has stated that writing was signed by Jagat Singh and no other family member. Taking the various circumstances into consideration, the Court held that no credence can be given to the testimonies of DW1 Pargan Singh and DW2 Gurdial Singh and their deposition is not sufficient to prove the document Ex.D1. The Court held these witnesses to be interested witnesses and that Ex.D1 was not signed by any other family member is a good circumstance to ignore the writing Ex.D1. The Court further held that testimony of Handwriting Expert Sukhjinder Singh PW5 who stated that the disputed signatures of Jagat Singh do not tally with his standard signatures, was another circumstance to ignore writing Ex.D1 along with the fact that it was not a registered one, even though it had conferred a right in an immovable property which was valued more than Rs.100/-. Thus, issue No.1 was decided in favour of the plaintiff and against the defendant. Issues No.2 to 4 were decided in favour of the plaintiff and against the defendant. Thus, issue No.1 was decided in favour of the plaintiff and against the defendant. Issues No.2 to 4 were decided in favour of the plaintiff and against the defendant. After stating the aforesaid reasons, the trial Court had decreed the suit and held the plaintiff entitled to possession of the suit property. 9. Aggrieved against the same, the defendant filed an appeal. The lower Appellate Court reiterated the well settled maxim that the plaintiff must prove his own case and cannot take advantage of the weakness of defendant’s case. Stating so, the court noticed the contention of counsel for the appellant that it was incumbent upon the plaintiff to prove his ownership over the property. It was urged before the lower Appellate Court that the plaintiff had failed to co-relate sale deed dated 7.1.1983, Ex.P1 and its receipt dated 22.12.1983, Ex.P2, and the judgment rendered in the civil suit filed by father of the plaintiff qua the property in question. The Court held that boundaries depicted in the plaint and in the judgment rendered in the earlier suit do not correspond with each other. The defendant’s contention was also considered by the lower Appellate Court. Taking into consideration the arguments advanced by counsel for the parties, the lower Appellate Court held as under:- “12. .....It is not disputed either by Sh.Sushil Kapur or Sh.P.S.Bajwa Counsel for the parties that the land which is subject matter of dispute over which construction has been raised vests in the Gram Panchayat and to the mind of this Court, Gram Panchayat is a necessary party. ....” The Court held that since the plaintiff has failed to prove his ownership and the land vests in the Gram Panchayat, he is not entitled to possession of the suit property. The Court further ignored the judgment and decree obtained by the father of the plaintiff on the ground that in that suit, the Gram Panchayat being a necessary party was not impleaded and that judgment and decree obtained at the back of the Gram Panchayat cannot be considered to confer any title upon Jagat Singh, father of the plaintiff. Taking the totality of circumstances into consideration, the lower Appellate Court has held that plaintiff has failed to prove his title over the suit property. 10. Taking the totality of circumstances into consideration, the lower Appellate Court has held that plaintiff has failed to prove his title over the suit property. 10. Mr.Avtar S. Khinda, learned counsel appearing for the appellant has not been able to deny that counsel for the appellant-plaintiff before the lower Appellate Court had admitted that ownership of the land vests in the Gram Panchayat. He has also failed to prove that the sale deed, Ex.P1, relied upon relates to the suit property. It is the admitted case of the plaintiff that he lost possession of the property some where in the year 1995. To claim the possession, it was imperative for the plaintiff to prove his title. Once, it was admitted that the land vests in the Gram Panchayat, suit of the plaintiff cannot be decreed. The lower Appellate Court has rightly reversed the findings given by the trial Court. No interference is warranted, especially when counsel for the appellant-plaintiff has failed to raise any question of law, much less the substantial one, for consideration of this Court. Hence, the present Regular Second Appeal is dismissed.