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2014 DIGILAW 2175 (RAJ)

Shanti Devi v. Lala Ram

2014-12-19

NISHA GUPTA

body2014
JUDGMENT 1. - This is Civil Second Appeal filed on behalf of the plaintiff-appellants under Section 100 of the Code of Civil Procedure, 1908 against the judgement and decree dated 18.01.1984 passed by the court of Additional District Judge No. 1, Bharatpur by which, it has dismissed the appeal filed by the plaintiff-appellants and upheld the judgement and decree dated 29/07/1977 passed by the court of learned Additional Munsiff, Bharatpur by which, suit has been dismissed filed by the plaintiff. 2. The brief facts giving rise to this civil second appeal are that plaintiff-appellant has filed a suit for declaration and injunction as regards to the disputed roof of the shop and contention of the appellant was that shop of the defendant was a part of the house of the appellant. The main gate of the house, which is in the shape of a haveli, is in possession of the appellant and only through this gate, one can reach on the roof of the shop of the defendant. The roof is in possession of the plaintiff since long. The room has been constructed over the roof. It has been purchased by the plaintiff-appellant from Smt. Dropdi. He was having possessory title over the roof. Defendant has relied on the documents Ex. A1 to Ex. A3 but nothing has been said as regards to the fact that these documents are related to the disputed property and there cannot be any presumption that ownership of the roof would go along with the property. The court below has not weighed the evidence in right perspective and findings are perverse. 3. Per contra, the contention of the defendant respondent was that there is no question of possessory title as the property has been purchased in 1967 and the suit has been filed in 1972. There was no settled possession of the plaintiff. Documents, which could show the ownership of the plaintiff have not been submitted and hence, inference should have been taken against the appellant. Ex. A1 to Ex. A3 are the documents from which the disputed property has been purchased and no objection could be raised as regards to these documents. These documents are 30 years old and submitted by proper possession. Both the courts below are concurrent in finding and no substantial question of law has been raised. Hence, the appeal be dismissed. 4. A1 to Ex. A3 are the documents from which the disputed property has been purchased and no objection could be raised as regards to these documents. These documents are 30 years old and submitted by proper possession. Both the courts below are concurrent in finding and no substantial question of law has been raised. Hence, the appeal be dismissed. 4. On 25.03.1985, on following substantial question of law, the appeal has been admitted:- (1) Whether the appellant can be said to be owners of the disputed roof by virtue of sale-deed in their favour coupled with presumption under Section 114 of Evidence Act? (2) Whether the lower courts committed illegality and error of law in deciding the case and as such the judgements are perverse? 5. Heard learned counsel for the parties, perused the impugned-judgements as well as original records of the case. 6. The case of the appellant is that he has purchased the roof of the disputed shop by sale-deed. Sale-deed has been submitted as Ex.1 through which he has purchased the same from Smt.Dropdi. In Ex.1, there is no specific narration that roof of the disputed shop has also been sold to the plaintiff-appellant. For the sake of argument, it can be assumed that roof has also been sold to the plaintiff-appellant but still he has to show that Dropdi was also owner of the disputed roof and was competent to sell it to him but no documentary evidence has been submitted to prove this fact. Dropdi has stated that shops have been sold out but roofs have been retained by them but to prove this fact, no documentary evidence has been submitted. The courts below have considered the fact that plaintiff-appellant has accepted that there are sale-deeds and mortgage-deed, which could establish his title but no document has been submitted. Apart from it, some portion of the property has been purchased from Nazool Department but no 'sanad' or document has been submitted to prove his contention. It has also been submitted that one other shop was purchased from Phoolchand but judgement Ex. A6 clearly speaks that roof of the shop has been found in the ownership of Phoolchand. Hence, all these facts go against the plaintiff-appellant. 7. It has been submitted that Ex. A1 to Ex. A3 are not related to the present shop but DW1 Lalaram has proved the documents Ex. A1 to Ex. A6 clearly speaks that roof of the shop has been found in the ownership of Phoolchand. Hence, all these facts go against the plaintiff-appellant. 7. It has been submitted that Ex. A1 to Ex. A3 are not related to the present shop but DW1 Lalaram has proved the documents Ex. A1 to Ex. A3 that properties have been purchased by their predecessors along with roof and during cross-examination of the defendant, it has been objected by the plaintiff that through documents Ex. A1 to Ex. A3, roofs have not been sold. Meaning thereby that the plaintiff-appellant has accepted the fact that Ex. A1 to Ex. A3 are in relation to the disputed shop hence, the appellant is estopped from saying otherwise that Ex. A1 to Ex. A3 are not in relation to the disputed shop. 8. It has been submitted stressfully that appellant is in possessory title of the property and reliance has been placed on the judgements of Supreme Court in Prataprai N. Kothari v. John Braganza, (1999) 4 SCC 403 , Chief Conservator of Forests, Govt. of A.P. v. Collector and others, (2003) 3 SCC 472 , Nair Service Society Ltd. v. K.C. Alexander and others, AIR 1968 SC 1165 and Ram Daan v. Urban Improvement Trust , (2014) 8 SCC 902 but here in the present case, admittedly, through Ex.1, the property has been purchased in 1967 and the present suit has been filed in 1972. Hence, the question of possessory title could not be raised and contention is not acceptable. 9. Contention of the appellant that in the sale-deed, disputed roof has been shown to be sold, is not supported by Ex.1. Apart from it, presumption under Section 114 of the Indian Evidence act, 1872 can be raised against the appellant as he has not submitted title-deeds, which are in possession of the appellant hence, it can be concluded that the party, who has not produced the evidence, which is in possession and withholds it, it can be presumed that it would be unfavourable to the party. 10. Both the courts below have considered the oral and documentary evidence. No perversity has been pointed out in the finding and reasoning of the courts below. No illegality or error of law could be shown hence, there is no force in the present appeal.This civil second appeal is accordingly dismissed. 10. Both the courts below have considered the oral and documentary evidence. No perversity has been pointed out in the finding and reasoning of the courts below. No illegality or error of law could be shown hence, there is no force in the present appeal.This civil second appeal is accordingly dismissed. The records be sent back to the courts below forthwith.Appeal Dismissed. *******