IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.3864 of 2008 (O&M) Date of Decision: 16.2.2009 Umed and another. ....... Appellants through Shri Sanjay Vij, Advocate Versus Rohtash and others. ....... Respondents through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 22.11.2007 and 30.7.2008 passed respectively by the Civil Judge (Junior Division), Gurgaon (hereinafter described as `the trial Court') and Additional District Judge, Gurgaon (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiff-respondent no.1 was decreed and the appeal of the defendants-appellants was dismissed. Respondent no.1 filed a suit for declaration claiming that he is owner in possession of the suit plot where he used to place cow dung cakes, store fire-wood and tether cattle since time immemorial. It was pleaded that this particular piece of land had come to him from his ancestors and the R.S.A.No.3864 of 2008 (O&M) -2- .... appellants were out to interfere in his peaceful possession. The appellants filed their written statement and denied the title of respondent no.1 over the suit plot, as also his possession. Both the parties went to trial on the following issues:- 1. Whether the plaintiff is exclusive owner in possession of the suit plot?OPP 2. Whether the plaintiff is entitled to relief of permanent injunction as prayed for?OPP 3. Whether plaintiff is entitled to relief of mandatory injunction as prayed for?OPP 4. Whether suit of plaintiff is not maintainable in its present form?OPD 5. Whether plaintiff is estopped from filing present suit by his own act, conduct etc.?OPD 6. Relief. After appraisal of the entire evidence on record, the trial Court, as also the First Appellate Court concluded that respondent no.1 had failed to establish his ownership on the suit land, but in so far as possession was concerned, a finding was recorded that he was in possession thereof. Learned counsel for the appellants, while assailing the findings recorded in the impugned judgments, contended that both the Courts were swayed by the admission made by DW2-Lila Ram, who admitted the possession of respondent no.1 on the suit plot. It is his contention that mere admission made by a witness of the appellants would not benefit the case of R.S.A.No.3864 of 2008 (O&M) -3- .... respondent no.1 as it is the settled principle of law that the plaintiff has to stand on his own legs and is to establish his case on the basis of positive evidence. Reliance was placed on Jalal Din and another VersusNawab and others, AIR 1941 Lahore 55, wherein it was held as under:- “There is no rule of law that a party must be bound by the statement of his witnesses, though the belief in such a rule is not uncommon and does great harm in judicial trials in some of the subordinate Courts.” Further reliance was placed on P.H.Dayanand Versus S.Venugopal Naidu & Ors., 2009(1) Haryana Law Reporter 6 (S.C.), wherein it was observed as follows:- “As burden of proving lies upon plaintiff, he should prove his title himself to suit property and failure of defendant to establish the title would not enable the plaintiff to have a decree passed in his favour.” Still further reliance was placed on Sher Singh and another Versus Daryao Singh and others, 2001(1) P.L.R. 121 (P&H), wherein a learned Single Judge held that “mere acts of user such as throwing rubbish, placing dung cakes,tethering cattle do not clothe one with possession.” I have thoughtfully considered the contentions raised by the learned counsel for the appellants. A perusal of the impugned judgments shows that it is not merely on the admission of DW2-Lila Ram that a finding of possession has R.S.A.No.3864 of 2008 (O&M) -4- .... been recorded in favour of respondent no.1. There was the testimony of PW3-Rohtas, respondent no.1 himself,which is supported by the statements of PW1-Karan Singh and PW2-Dalip, who admitted to his possession over the suit plot. When the testimony of DW2-Lila Ram is read along with depositions of respondent no.1 and his witnesses, the irresistible conclusion that comes is that respondent no.1 was in possession of the disputed plot. There is no quarrel with the proposition that the plaintiff has to stand on his own legs and has to prove his case by producing qualitative and positive evidence, but when there is some semblance of evidence which is supported by the testimony of the defendant, then that has to be taken into consideration and cannot be ignored by the Courts. The impact of the testimony of the witnesses is to be considered along with other pieces of evidence that may exist on record, and to arrive at a conclusion or to derive an inference, a composite view of the entire evidence has to be taken. In the instant case, a finding of fact regarding the possession of respondent no.1 has been recorded on the basis of the material before the Courts below and the same cannot be termed to be perverse so as to warrant interference in the Regular Second Appeal. Besides, possession is a question of fact which has been answered concurrently by both the Courts below. No question of law, much less a substantial question of law, arises for determination by this Court. Consequently, this appeal, being devoid of any merit, is dismissed. February 16,2009 ( Mahesh Grover ) “SCM” Judge