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2014 DIGILAW 668 (PNJ)

Des Raj v. Kartar Chand

2014-04-02

RAKESH KUMAR GARG

body2014
Judgment RAKESH KUMAR GARG, J. This is plaintiffs’ second appeal challenging the judgments and decrees of the Courts below whereby their suit for permanent injunction restraining the defendant-respondents from interfering in the use of the passage in dispute and also restraining them from raising any type of construction in the said passage was dismissed by the trial Court and the said decree was affirmed in appeal by the lower appellate Court. As per the averments made in the suit, the plot in dispute which comprised in Khasra No.492/4 (04) shown as Gair Mumkin Abadi and described in the site plan as ‘ABCD’ was originally owned by Achhar Singh from whom it devolved upon Munshi Ram, father of the plaintiffs. The plaintiffs have inherited the estate of Munshi Ram and thus were in possession of the plot as aforesaid. There is a passage connecting the said plot which has been depicted as ‘KLBM’ in the site plan and is comprised in Khasra No.492/6 (01) as per the revenue record. According to the further averments, this is the only passage leading to the plot of the plaintiffs as the said passage connects the plot of the plaintiffs with the main metalled road. The plot of the defendants is situated towards western side of the plot owned by the plaintiffs and the passage shown by letters ‘KLBM’ is surrounded by plot of the defendants towards the northern and southern sides as depicted in the site plan. It is alleged that the defendants have no right, title or interest in the plot shown as ‘ABCD’ but they have illegally occupied the plot of the plaintiffs and now the plaintiffs are entitled to claim the possession thereof. It is also alleged that the defendants are not allowing the plaintiffs to use the passage shown by letters ‘KLBM’ and they were also threatening to encroach upon the passage in question. Hence, the suit. Upon notice, the defendants filed written statement raising various preliminary objections. On merits, it was denied that the property marked as ‘ABCD’ bears Khasra No.492 (04) as alleged or the said Achhar was owner of the property shown in the site plan. It was denied that Achhar left behind Munshi Ram, his son. It was further denied that the plaintiffs were grandsons of Achhar. On merits, it was denied that the property marked as ‘ABCD’ bears Khasra No.492 (04) as alleged or the said Achhar was owner of the property shown in the site plan. It was denied that Achhar left behind Munshi Ram, his son. It was further denied that the plaintiffs were grandsons of Achhar. It was alleged that the plaintiffs do not relate to Achhar nor have they got any right, title or interest in the property in dispute. Existence of passage marked as ‘KLBM’ was also denied. It was alleged that there was a pond towards northern side of the suit property and the entry, if any, showing passage was absolutely baseless and imaginary. It was contended that the plaintiffs were neither owners nor in possession over any plot. It was alleged that the defendants were in possession of the property marked as ‘ABCD’ shown in the plaint, annexed with the written statement, where they have made constructions and planted various kind of trees. Possession of the defendants over the said property was continuous, uninterrupted and for more than 50 years. The property towards southern side of the suit property has been shown to be the house of Parkash Chand, whereas there is no house of Parkash Chand towards southern side of the property in dispute. It was further denied that there was any passage towards northern side shown as ‘KLBM’, rather it was contended that towards northern side there is a pond. It was alleged that the defendants were in possession of the disputed property in their individual capacity and that the plaintiffs have nothing to do with the property in possession of the defendants. Thus, dismissal of the suit was prayed for. On the basis of the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the plaintiff is entitled for possession as prayed for? OPP 2. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 3. Whether the present suit is time barred as alleged? OPD 4. Whether the present suit is not maintainable? OPD 5. Whether the site plan attached with the plaint is not correct? OPD 6. Relief. Whether the plaintiff is entitled for possession as prayed for? OPP 2. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 3. Whether the present suit is time barred as alleged? OPD 4. Whether the present suit is not maintainable? OPD 5. Whether the site plan attached with the plaint is not correct? OPD 6. Relief. After hearing learned counsel for the parties and appreciating the evidence on record, the trial Court decided issues No.1 and 2 in favour of the defendants, whereas issues No.3 to 5 were not pressed at the time of arguments by learned counsel for the defendants and consequently, suit of the plaintiffs was dismissed by the trial Court vide its judgment and decree dated 10.03.2005. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff-appellants filed an appeal, which was also dismissed by the first appellate Court vide its judgment and decree dated 01.02.2010. While dismissing the appeal, the lower appellate Court observed as under: “14. By way of present appeal the appellants have challenged the judgment and decree dated 10.3.2005. Perusal of case file reveals the fact that plaintiffs (appellants) filed suit for possession of plot measuring 04 Marlas comprised in Khasra No.492/4 and for permanent injunction restraining the defendants from interfering in any manner in the use of the passage shown by letters KLBM bearing Khasra No.492/6 (01) and further restraining the defendants from raising any type of construction in the plot shown by letters ABCD comprised in Khasra No.492/4 and passage shown by letters KLBM comprised in Khasra No.492/6. 15. This Court is of the considered view that since plaintiffs have claimed possession of the plot measuring 04 Marlas comprised in Khasra No.492/4, therefore, it was for the plaintiffs to have proved their ownership rights over the suit land. Plaintiffs have failed to bring on record any document which could show their ownership over the suit land. Simply by stating that they have inherited the property from Achhar son of Mangta, who happens to be their grandfather is not sufficient to believe them to be the owners of the suit land for the purpose of granting possession to them. No mutation of inheritance of Achhar has been brought on record which could show that after the death of Achhar the property had fallen to Munshi Ram i.e. father of plaintiffs. No mutation of inheritance of Achhar has been brought on record which could show that after the death of Achhar the property had fallen to Munshi Ram i.e. father of plaintiffs. Similarly, there is nothing on record which could show that after the death of Munshi Ram, the said property has fallen to the share of the plaintiffs. The plaintiffs have just brought on record site plan (Ex.P1) and no document such as jamabandi, or sale deed or conveyance deed has been got exhibited in order to prove their ownership qua the suit land. Merely on the basis of site plan (Ex.P1) it cannot be believed that plaintiffs are owners of the suit land. Strange enough the suit was filed by four plaintiffs, namely, Des Raj, Sanjhi Ram, Hans Raj and Gopal Dass but none of those plaintiffs appeared in the witness box to support their case. Learned trial Court rightly relying upon the judgment in the case of Sardari Lal Vs. Kartar Singh and others, 1998(3) Civil Court Cases 65 held that non appearance of a party as a witness in the suit gives rise to a strong presumption against him. Needless to say that if a party does not enter into the witness box to make statement on oath in support of his pleadings, an adverse inference would be drawn against him. Since plaintiffs have knocked the doors of the Court, therefore, it was for the plaintiffs to have proved the fact that they are entitled to possession and permanent injunction as prayed for. Plaintiffs witness, namely, Tej Ram while appearing as PW1, in his cross-examination categorically admitted the fact that plot of the plaintiffs fall in the pond. He has further stated that in the plot of Kartar Chand rooms have been constructed and safaida trees are standing therein. Thus, if the plot of the plaintiffs falls in the gairmumkin pond then the allegations of the plaintiffs that the defendants are in possession of their plot cannot be believed to be true. Similarly, Amrik Singh (PW2) in his cross-examination admitted the fact that site plan produced on record by the defendants as Ex.D1 is correct as per spot. Thus, if site plan (Ex.D1) is correct as per statement of this witness, then the defendants are not in possession of any portion of the plot of the plaintiffs. Similarly, Amrik Singh (PW2) in his cross-examination admitted the fact that site plan produced on record by the defendants as Ex.D1 is correct as per spot. Thus, if site plan (Ex.D1) is correct as per statement of this witness, then the defendants are not in possession of any portion of the plot of the plaintiffs. Plaintiffs in the present case have failed to bring on record any pedigree table to prove their pleadings. Plaintiffs have failed to bring on record any document to prove their ownership regarding Khasra No.492/4 (01) detailed as ABCD in the site plan attached with the plaint. The plaintiffs have failed to bring on record any revenue document or any other document which could prove the fact that there exist a passage as shown by letters KLBM in the site plan and comprised in Khasra No.492/6 measuring 01 Marla. Plea of the plaintiffs is that the defendants have illegally occupied the plots shown by letters ABCD but no specific date has been mentioned that on which date this possession was illegally taken by the defendants. Had it been so the plaintiffs should have reported the matter to the police or to the other higher authorities, which is not the case. Plaintiffs have failed to bring on record any FIR/DDR in order to prove such illegal occupation of the defendants. Even the plaintiffs have failed to bring on record any revenue document which could prove the fact that defendants are in forcible and illegal occupation of the suit land.” Still not satisfied, plaintiffs have filed the instant appeal submitting that the following substantial questions of law arise in this appeal: (i) Whether the lower appellate Court has committed a legal error by not deciding the application under Order 41 Rule 27 CPC filed by the appellants? (ii) Whether gross injustice has been caused and principles of natural justice have been violated by the ld. Trial Court by not permitting the appellants to place on record the affidavit of one of the plaintiffs and to exhibit the copy of the jamabandi already placed on record and therefore, the judgment and decree passed by the ld. Trial Court is unjustified and illegal? (iii) Whether this Hon’ble Court can interfere under Section 100 CPC into the findings of fact recorded by both the Courts below if the same are based on misappreciation and misreading of the evidence? Trial Court is unjustified and illegal? (iii) Whether this Hon’ble Court can interfere under Section 100 CPC into the findings of fact recorded by both the Courts below if the same are based on misappreciation and misreading of the evidence? In support of his case, counsel for the plaintiff-appellants has vehemently argued that findings of the courts below are the result of misreading and misinterpretation of the record and thus, the impugned judgments and decrees of the Courts below are the result of perversity and liable to be set aside. Moreover, application of the appellants for leading additional evidence was not decided and thus, it has resulted into miscarriage of justice giving rise to the substantial question of law, as raised. I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below. At the outset, it may be noticed that though a grievance has been raised before this Court with regard to declining the prayer of the appellants for leading additional evidence, however, there is nothing on record of this appeal to substantiate the prayer of the appellants and no further argument has been raised in this regard. It may further be noticed that it is a matter of record that the plaintiff-appellants have failed to step into the witness box to support their case. In fact, the plaintiff-appellants have failed to produce on record any documentary evidence in the shape of jamabandi/sale deed etc. to prove their title over the suit property. The averments have been made only on the basis of site plan Ex.P1. Moreover, the findings have been recorded by the courts below on appreciation of evidence and it could not be shown as to how they are perverse. Thus, this Court finds no merit in this appeal as the substantial questions of law, as raised, do not arise at all in this appeal. Dismissed.