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2011 DIGILAW 756 (PNJ)

Lachman Dass v. Gram Panchayat Village Heran

2011-03-08

RAM CHAND GUPTA

body2011
JUDGMENT Mr. Ram Chand Gupta, J.: - The present revision petition has been filed under Section 115 of the Code of Civil Procedure (hereinafter to be referred as ‘the Code’) against judgment and decree dated 17.7.2009 passed by learned Additional Civil Judge, Senior Division, Nakodar, vide which suit filed by the petitioner-plaintiff for a decree for possession of the property in dispute, duly described in the heading of the plaint under Section 6 of the Specific Relief Act, 1963 (hereinafter to be referred as ‘the Act’) was dismissed. 2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court. 3. Briefly stated the facts of present revision petition are that petitioner-plaintiff filed a suit for restoration of possession under Section 6 of the Act of the property in dispute, i.e., taur measuring 160 sq.feet, duly shown in red colour in the site plan attached with the plaint and bounded as under:- “North : Harbans Singh 5' South : Street 5' East : Gurdev Kaur 32' West : Remaining property by plaintiff.” 4. It has been averred that the property is part of plot measuring 4 marla 5 sarsai 17 sq.ft., which was purchased by him in an open auction from the Sales Department on 17.4.1972 for a consideration of Rs.54/-. He raised boundary wall around the said plot and also constructed a room and a verandah and a door was affixed on the southern side towards the street for ingress and outgress. However, defendants without any right and consent of the plaintiff carved out a street from the property of the plaintiff in the month of July 2001 by dismantling the boundary wall and the door of the plaintiff. Hence, this suit. 5. Suit has been contested by the defendants on the plea that property in dispute is part of public street, which is in existence for the last so many years and that the street goes up to the house of Harbans Singh and there are houses of Lachman Dass and Gurdev Kaur towards the Western and Eastern side and hence, the suit is not maintainable. Specific plea has been taken that plaintiff never remained in exclusive possession of the property in dispute and hence suit under Section 6 of the Act is not maintainable. Specific plea has been taken that plaintiff never remained in exclusive possession of the property in dispute and hence suit under Section 6 of the Act is not maintainable. It has also been stated that previously a suit was filed by the plaintiff against Gram Panchayat as well as Gurdev Kaur, which was contested by Gurdev Kaur and the Gram Panchayat and, however, the said suit was got dismissed in default by present petitioner-plaintiff. Plea has also been taken that no measurements of the plot purchased by petitioner-plaintiff has been given in the conveyance deed in his favour and hence, it is contended that it cannot be said that street in dispute forms part of the said conveyance deed. 6. From the pleadings of the parties, following issues were framed for adjudication by learned trial Court:- “1. Whether the property is duly described by the plaintiff? (OPP) 2. Whether the plaintiff is owner of the property on the basis of purchase deed dated 17.4.1972? (OPP) 3. Whether the plaintiff raised construction over the suit property? (OPP) 4. Whether the defendant no.1 Gram Panchayat forcibly carved out the street out of the suit property and if so, its effect? (OPP) 5. Whether the plaintiff has been wrongly dispossessing the plaintiff by the Gram Panchayat from the suit property? (OPP) 6. Whether plaintiff Lachhman Dass has the locus standi to file the present suit ? (OPP) 7. Whether defendant no.2-Gurdev Kaur has entered into the suit property, if so, its effect? (OPD no.2) 8. Whether the plaintiff has concealed the material facts from the Court, if so, its effect? (OPD) 9. Relief.” 7. Both the parties adduced their evidence before learned trial Court. Learned trial Court discussed issues no.1 to 5 together and decided the same against petitioner-plaintiff. Issues no.6 to 8 have been decided against defendants and in favour of plaintiff. However, in view of findings on issues no.1 to 5, suit of the plaintiff was dismissed with cost. 8. It has been contended by learned counsel for the petitionerplaintiff that it is an admitted case of the parties that the gali was constructed by respondent- Gram Panchayat and that the construction work was completed on 13.6.2001. It is further contended that the documents placed on record on behalf of the respondents-defendants have not been duly proved, whereas petitioner-plaintiff acquired ownership of the property in dispute vide conveyance deed, Annexure P1. It is further contended that the documents placed on record on behalf of the respondents-defendants have not been duly proved, whereas petitioner-plaintiff acquired ownership of the property in dispute vide conveyance deed, Annexure P1. It is also contended that petitioner-plaintiff is required to prove his settled possession of more than six months before filing the present suit in order to succeed under Section 6 of the Act and, hence, it is contended that learned trial Court has committed illegality in dismissing the suit filed by petitioner-plaintiff. 9. On the other hand, it has been contended by learned counsel for respondent no.2-Gurdev Kaur that plaintiff was to stand on its own legs and that he has failed to prove that he was in exclusive possession of the property in dispute and that property in dispute forms part of conveyance deed, Annexure P1. It is also contended that plaintiff also failed to prove that he was dispossessed from the said property. Rather it has been stated that the property in dispute is being used as a gali for the last so many years and later on, the same was made pucca by the Gram Panchayat. It is also contended that moreover in the present revision petition, this Court cannot go into the question of facts as decided by learned trial Court and that interference could only be within parameters prescribed under Section 115 of the Code. 10. Law is well settled that in its revisional jurisdiction, this Court can interfere only if the case falls within the settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code. This Court can interfere only if petitioner is able to show that learned trial Court has committed any illegality or material irregularity in passing the impugned order. However, remedy of a person, in accordance with law in a suit under Section 6 of the Act is to file a regular suit establishing his title over the suit property and in the event of his succeeding, he will be entitled to recover the possession of the property notwithstanding the adverse possession under Section 6 of the Act. However, remedy of a person, in accordance with law in a suit under Section 6 of the Act is to file a regular suit establishing his title over the suit property and in the event of his succeeding, he will be entitled to recover the possession of the property notwithstanding the adverse possession under Section 6 of the Act. Suit under Section 6 of the Act is summary in nature and that scope of the enquiry under Section 6 of the Act is confined to find out the possession and the dispossession within the period of six months from the date of institution of the suit ignoring the question of title. For this view, reliance has been placed upon Sanjay Kumar Pandey and others v. Gulbahar Sheikh and others, AIR 2004 Supreme Court 3354. Relevant paragraphs of the same reads as under:- “4. A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub- Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this Section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code. 5. 5. A perusal of the order of the High Court shows that the High Court has for the purpose of reversing the decree of the trial Court relied on the oral statements of Natai Sheikh, PW- 3 and Ram Sevak Ram, PW-5. One sentence each from the two depositions has been extracted and set out by the High Court in its order for the purpose of forming an opinion that they are not the plaintiffs but the defendants who were in possession of the suit property before six months from the date of the institution of the suit. The High Court has not looked into all the material available on record and has also not indicated clearly the availability of any of the grounds within the parameters of Section 115 of the Code so as to exercise revisional jurisdiction calling for reversal of the decision of the trial Court under Section 6 of the Act. The revision filed before the High Court cannot be said to have been satisfactorily disposed of.” 11. Hence, in view of aforesaid legal proposition, this Court is to see as to whether learned trial Court has committed any illegality or material irregularity in coming to the conclusion that petitioner-plaintiff was not in established possession of the property in dispute and that he was not dispossessed within six months of the filing of the suit. 12. Suit filed by present petitioner-plaintiff was dismissed by learned trial Court by observing as under:- “19. By way of the present suit, plaintiff has sought to get the possession of 160 sq.ft restored as detailed in the plaint. The basic contention of learned counsel for the plaintiff is correct, that in the present case settled possession of more than six months and dispossession has to be proved. For this purpose he has relied upon the aforementioned authority. In the said authority his lordship has held that `it is well settled that a person in peaceful possession is entitled to retain his possession and in order to protect his possession he may even use reasonable force to keep away the trespasser’. Therefore, it is evident that first condition precedent for the success of the case of the plaintiff is proof of possession. The plaintiff has stated that he came into possession of the suit land vide conveyance deed Ex.P1. Therefore, it is evident that first condition precedent for the success of the case of the plaintiff is proof of possession. The plaintiff has stated that he came into possession of the suit land vide conveyance deed Ex.P1. Perusal of Ex.P1 shows that plaintiff has been allotted taur no.5 measuring 4 kanal 5 marlas 17 sarsai. However, the description of the sites has not been given in the conveyance deed. Therefore, this document is not sufficient to prove the case of the plaintiff in respect of the boundaries as stated by him in the plaint. Further he has relied upon site plan Ex.P2. Mere preparation of site plan is not sufficient to prove possession of the plaintiff. Otherwise also the area shown in the site plan is 3.63 marla and the plaintiff has failed to show the boundaries of the remaining land. Even otherwise the plaintiff has failed to prove the site plan as same has been prepared by Draftsman who was not called in the witness box to prove the same despite the fact that defendant has taken specific plea in the written statement that site plan produced by the plaintiff is not correct. 20. It is well settled law that onus to prove the case in on the plaintiff. In the site plan Ex.P2 itself the plaintiff has shown the suit premises by red shade. Thereafter the red shade a street 5ft. 6 inch wide has been shown in the site plan placed by the plaintiff himself. It is not the plea of the plaintiff that said street closes immediately after the wall of his plot commences. Another site plan Ex.D1 has been placed on record by the defendant which is duly proved by the Draftsman DW-1. In the said site plan also street 5ft. 6 inch is shown to be going from western side and continues further DW-1 in his evidence has specifically stated that when he prepared the site plan on 17.2.2006 the gali was in existence and was brick paved. By cross-examining this witness no concrete question qua the existence and continuance of gali as stated by him was put to him. He was not cross-examined on the point that on 17.2.2006 gali was not in existence when site plan was prepared. He has also not been cross-examined by showing Ex.P1 to him. By cross-examining this witness no concrete question qua the existence and continuance of gali as stated by him was put to him. He was not cross-examined on the point that on 17.2.2006 gali was not in existence when site plan was prepared. He has also not been cross-examined by showing Ex.P1 to him. Therefore, it is evident that site plan as produced by defendant is correct. Otherwise also as discussed above that slight part of the gali was also shown by the plaintiff in site plan Ex.P1. Therefore, plea of the plaintiff that the Gali was carved out only in the month of July 2001 is devoid of any force. Since the plaintiff has failed to prove his possession as discussed above, the authority cited by him is also not applicable to the case in hand. 21. The contention of learned counsel for the plaintiff that non-production of sale-deed by DW-3 creates an adverse inference is also devoid of any force because as already discussed above that it is for the plaintiff to prove his own case, for which he failed to do so. 22. Learned counsel for the plaintiff has further contended that the documents placed on record by the defendant are not proved in accordance with law and they cannot be read in evidence. The defendant has placed on record copy of report of Gurdip Singh Patwari dated 4.5.1962 and 29.3.1962. In the said report gali is shown to be in existence on the site of taur No.5. Thus further fortifies the claim of the defendant that the gali is in existence since long and the plaintiff has not been dispossessed as stated by him in the plaint. 23. Plaintiff, while being cross-examined, has admitted the photographs Ex.D1 to Ex.D4, he has admitted that the windows of the defendant open and parnala is also flowing near the house of the defendant. Plaintiff has failed to show that if the street does not exist at the spot then where the said windows are opening and where the parnala is flowing. As per the site plan relied upon by the plaintiff the house of Gurdev Kaur is shown to be on the eastern side. This further speaks volumes of existence of street. Plaintiff has failed to show that if the street does not exist at the spot then where the said windows are opening and where the parnala is flowing. As per the site plan relied upon by the plaintiff the house of Gurdev Kaur is shown to be on the eastern side. This further speaks volumes of existence of street. Accordingly, the plaintiff has failed to make out the ingredients as required under Section 6 of the Specific Relief Act and all the issues are decided against the plaintiff.” 13. Hence, a careful perusal of the aforementioned observations of learned trial Court shows that the evidence adduced by both the parties was duly considered by learned trial Court and only thereafter learned trial Court came to the conclusion that petitioner-plaintiff was failed to prove his case to bring the same within parameters of Section 6 of the Act. Hence, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned judgment and decree warranting interference by this Court. 14. A perusal of site plan,Ex.P2, on which reliance has been placed by learned counsel for petitioner-plaintiff and the site plan, Ex.D1, which has been filed by respondent-defendant shows that adjoining the property in dispute, there is open plot of petitioner-plaintiff, whereas residential houses of other persons are abutting the said property. Respondent no.2-defendant no.2 has constructed her house. Windows and doors of her house also open towards the disputed property. Hence, it shows that the property in dispute is being used as gali and the same has also been made pucca by Gram Panchayat. 15. In view of the aforementioned discussion, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. ------------------ Shree Jagdambey Steel Tubes, Pvt. Ltd. v. State Krishan Kumar v. Chandigarh Industrial & Tourism Development…