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2013 DIGILAW 1644 (PNJ)

Amarjit Kaur v. Hukum Singh

2013-12-10

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan J.: - The following substantial questions of law arise for consideration in the second appeal. 1. Whether the plaintiff’s claim for injunction could be decreed without adjudging the issue of title in favour of the plaintiff ? 2. Whether the Appellate Court was justified in reversing the judgment of the trial Court failing to note that the plaintiff had failed to establish the document propounded by him to conform to the boundaries as brought out in the document and evidence ? 3. Whether the plaintiff’s claim to title is established by the defendants’ own admission through the application filed as Ex.D1 that identified the suit property typically in the same fashion as the plaintiff himself has set out in his own plan except for varying minor discrepancies ? 2. The plaintiff’s suit for injunction was dismissed at the trial Court but on appeal by the plaintiff it was decreed. The defendants are the appellants. The plaintiff’s suit for injunction was filed on a claim by him that he had purchased the property that set out specific boundaries and measurements through a document dated 18.02.1957 and he had been using the same for tethering cattle. The defendants had ownership of property on South of his own property but the defendants were attempting to lay false claim to the same compelling the plaintiff to suit for relief. The defendants’ contention was that the property purchased by the plaintiff did not refer to the suit property at all and the measurements given under the document were to be seen. On the East, the property was shown to be 6' gali but the plaintiff was making claim for more than 36 ½’. There was only a reference to Arur Singh as the owner in the South but in the plan given by the plaintiff, there was a lane on the South which did not fit in description found in the sale deed. The trial Court accepted the defence and found material variations in the manner in which the property was described in suit and in the sale deed and held that the plaintiff’s case for possession was not established and dismissed it. 3. The trial Court accepted the defence and found material variations in the manner in which the property was described in suit and in the sale deed and held that the plaintiff’s case for possession was not established and dismissed it. 3. The Appellate Court relied on the evidence given by the parties relating to possession and held that the sale deed actually referred only to the suit property and the description of the property on the South as of Arur Singh was the defendants’ own property and the reference to a lane on the South was only a passage that had been provided for access to go from the lane on the East towards her property on the West. The judgment of the lower Appellate Court is assailed by the Senior Counsel appearing on behalf of the appellant contending that the trial Court’s judgment regarding the material variations in the description found in the sale deed and the document as claimed by the plaintiff in the plaint had not been duly appreciated and brings home for consideration that the plaintiff who sues for injunction cannot secure the relief without proving title since the property was merely a vacant site. The counsel would also argue that even if there was some discrepancy regarding the linear measurements in case of any inconsistency between measurements and boundaries, the boundaries alone would prevail. The substantial questions of law that I have already framed also pertain to the arguments canvassed by the learned Senior Counsel for the appellant. 4. Though the counsel appearing on behalf of the respondents wanted to down play the issue of title by saying that he had not sought for title and that he has only asked for the relief of injunction on the basis of possession, I must observe that the nature of possession of the property in suit is such that the relief of injunction itself will not be possible without proving title. It is axiomatic that in respect of vacant lands, possession would follow title. In this case, although the attempt was made by the plaintiff to say that he was in possession of the property by tethering cattle and relied on the evidence of one Kewal Krishan adjoining the owner on the North that the plaintiff was in possession, the acts of possession had not been elaborately given to make an inference that plaintiff was in possession. Mere tethering of cattle could be anybody’s job and a consistent act of possession cannot be considered by such sporadic acts of tethering cattle to justify the relief of injunction. The case would inevitably require us to examine the document under which the plaintiff was claiming the right of possession and that would also take us to the issue of whether the plaintiff had proved title. 5. The sale deed refers to several persons having fractional shares of the property as transferring the rights with reference to 21 kanals and 4 ½ marlas and a vacant land in accordance with particular shares mentioned within the boundaries mentioned in the document. Since the property was in the lal lakir (red line), no reference was given to the vacant land and the identification of the property which was sold has been done through the reference to the following boundaries:- “North : 60' vacant site of Tehal Singh South : 52' vacant site of Arur Singh West : 36 ½’ house of Udham Singh etc. East : 6' public street” 6. Learned counsel appearing for the appellant would point out that the description of property makes a reference to Arur Singh’s property as on the South but in the plan filed as Ex.P1 a gali of 5' breadth is shown as property immediately South and Gali on the East. The plaintiff’s sale deed, therefore, does not refer to the suit property. The counsel appearing on behalf of the defendant, on the other hand, points out to the plan which has been filed by the defendant as Ex.D1 replicates the plaintiff’s plan in all ways except that the property shown as the property of the plaintiff is shown by the defendant as her property. In this case, the person immediately on the North who was Tehal Singh has later come to Kewal Krishan, who had been examined as a witness, who referred to the acts of possession of the plaintiff. In the cross-examination nothing is suggested to him that he does not own property on the North and in fact the defendants’ own plan in Ex.D1 identifies Kewal Krishan as a person, who owns property on the North. In the plan filed by the defendant, Kewal Krishan was shown as a person owning property on the South with small lane in between the suit property and property of Kewal Krishan. In the plan filed by the defendant, Kewal Krishan was shown as a person owning property on the South with small lane in between the suit property and property of Kewal Krishan. If Kewal Krishan is seen as person who owned property on the North and South, the only discrepancy that we will have to notice is that the suit property shown on the South is the property of Arur Singh and therefore, Kewal Krishan cannot be shown as the owner unless he was himself a purchaser of the property from Arur Singh. It is not possible for me to gather as to how Kewal Krishan became the owner in the South but that is how even the defendant’s plan depicts. The only difference is that there is small lane which is shown between the property of Kewal Krishan and the suit property which is not referred to in the sale deed. 7. Comparing the respective site plans and the measurements given for the property, there could be no doubt that what was referred to in the sale deed is only the property in dispute. If there was no reference to a lane on the South, it is only because that lane is not a public lane but it is private passage that has been carved out for access to go to the defendant’s house from the gali on the East. The boundaries in the West, North and East tally correctly with what is described in the plaint. The description of the property to Arur Singh on the South is not also a mistake and the non-reference to a lane cannot assume significance for as we have observed that the lane is a private lane and on the South of the suit property is still the property of Arur Singh whose daughter is the defendant. I have, therefore, no doubt that the plaintiff is making claim with reference to the suit property under a document which has dealt with only the suit property and therefore, the plaintiff’s title to the property has been established. 8. There could be another manner of examining whether the suit property could belong to the defendant from the evidence which has been tendered by her and the site plan which has been given by the defendant. 8. There could be another manner of examining whether the suit property could belong to the defendant from the evidence which has been tendered by her and the site plan which has been given by the defendant. If the suit property were to be taken as being in ownership of the defendant and possessed by her, there is no document which the defendant has to make such assertion. As per Ex.D1 which is site plan produced by the defendant even South of the suit property she has described herself to be the owner with the provision of passage to reach from the gali. If the defendant has no document to submit for proof of her ownership in respect of the property and would rest contended by the fact that plaintiff who filed suit for injunction must prove his title irrespective of the weakness of the defence, I will still use the defendant’s own case to show that plaintiff’s case has been literally proved by the fact that the boundaries in the sale deed tally with the suit property and the discrepancy with regard to the Southern boundary is not really a discrepancy but it could be explained by the fact that even apart from the defendant there was yet another owner Kewal Krishan whose presence on the South is an admitted fact. 9. The lower Appellate Court was justified, therefore, in finding that the plaintiff had established his title, the boundaries found in the sale deed had tallied with the boundaries in suit and the plan Ex.P1 and Ex.D1 represented the very same property with no variation at all except in the manner of claim by the respective parties that the property belonged to each one of them. 10. The substantial questions of law are answered as above and I would find that there is no error in the lower Appellate Court judgment for reversal in the second appeal. The second appeal is dismissed.