RSA No.3281 of 1987 -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) RSA No.3281 of 1987 Date of decision:01.02.2011. Arjan Singh son of Khazan Singh ...Appellant Versus Arjan Singh son of Ram Singh and another ...Respondents (2) RSA No.3680 of 1987 Date of decision:01.02.2011. Ram Bhaj ...Appellant Versus Arjan Singh son of Sh. Ram Singh and another ...Respondents (3) RSA No.3217 of 1987 Date of decision:01.02.2011. Ram Bhaj ...Appellant Versus Arjan Singh son of Khazan Singh and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. R.S.Mittal, Senior Advocate, with Mr. S.K.Tripathi, Advocate, for the appellant in RSA No.3281 of 1987. Mr. Ajay Jain, Advocate, for the appellant(s) in RSA Nos.3680 & 3217 of 1987 and for respondent No.2 in RSA No.3281 of 1987. Mr. C.B.Goel, Advocate, for respondent No.1 in RSA Nos.3281 & 3680 of 1987 and for respondent No.2 in RSA No.3217 of 1987. ***** RAKESH KUMAR JAIN, J. By this order, I shall be disposing of three appeals bearing RSA No.3281 of 1987 titled as `Arjan Singh son of Khazan Singh Vs. Arjan Singh son RSA No.3281 of 1987 -2- ***** of Ram Singh and another', RSA No.3680 of 1987 titled as `Ram Bhaj Vs. Arjan Singh son of Sh. Ram Singh and another' and RSA No.3217 of 1987 titled as `Ram Bhaj Vs. Arjan Singh son of Khazan Singh and another' as all the three appeals have arisen from the judgment and decree of the learned First Appellate Court by which Civil Appeal No.9/13 of 1987 titled as `Arjan Singh son of Shri Ram Singh Vs. Arjan Singh son of Khazan Singh and another' has been allowed, consequently the judgment and decree of the learned Trial Court dated 24.12.1986 in favour of Arjan Singh S/o Khazan Singh has been set aside and the Civil Appeal No.17/13 of 1987 titled as `Ram Bhaj Vs. Arjan Singh son of Shri Khazan Singh and another' has been dismissed. In brief, Arjan Singh S/o Khazan Singh filed a suit for declaration that he is owner in possession of a Bara marked by letters ABCDEF, situated within the abadi deh of village Bazida Jattan as shown in the site plan (Ex.P1) and is being used for storing his batoras, cow dung cakes, fuel wood and tethering cattles and the defendants, who have no right, title or interest, are bent upon to dispossess him forcibly. Both the defendants filed their separate written statement. Defendant No.1 (Ram Bhaj) claimed himself to be in physical possession having his residential house over the suit property. Defendant No.2 (Arjan Singh S/o Ram Singh) claimed himself to be owner in actual possession of the suit property. The plaintiff filed replication to the written statements filed by the defendants and on the pleadings of the parties, following issues were framed: - “1. Whether plaintiff is in possession of the suit property as alleged?OPP. 2. Whether the suit is not maintainable?OPD. 3. Whether the suit is time barred?OPD. 4. Whether the suit is bad for non-joinder of necessary parties?OPD. 5. Relief.” Both the parties led their respective evidence in which plaintiff himself appeared as PW1. He also examined Baru Ram as PW2 and Manohar Lal, Draftsman as PW3. On the other hand, defendants No.1 & 2 appeared as DW2 and DW4 respectively and defendant No.1 also examined Gian Chand Jain, Draftsman as DW1 who proved site plan Ex.D1/A and Dhajja Ram as DW3. The learned Trial Court vide its judgment and decree dated 24.12.1986 held that since RSA No.3281 of 1987 -3- ***** the property in dispute is situated within the abadi deh and no documentary evidence has been led by either of the parties, the oral evidence led by the parties was looked into while observing that a very heavy onus is on the plaintiff to prove that he is owner in possession of the disputed bara. The learned Trial Court decided issue No.1 in favour of the plaintiff and issues No.2, 3 and 4 were decided as not pressed. Consequently, the suit was decreed. Aggrieved against the judgment and decree of the learned Trial Court, defendant No.1 filed Civil Appeal No.17/13 of 1987 titled as `Ram Bhaj Vs. Arjan Singh son of Shri Khazan Singh and another' and defendant No.2 filed Civil Appeal No.9/13 of 1987 titled as `Arjan Singh son of Shri Ram Singh Vs. Arjan Singh son of Khazan Singh and another'. The learned First Appellate Authority dismissed the appeal filed by defendant No.1 and allowed the appeal filed by defendant No.2 while reversing the judgment and decree of the learned Trial Court. Learned counsel for the appellant has vehemently argued that the learned Appellate Authority has committed a serious error of law in reversing the judgment and decree of the learned Trial Court while re-appreciating the oral evidence. In this regard, he has referred to a decision of the Supreme Court rendered in the case of Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh and others, AIR 1951 Supreme Court 120(1). On the other hand, learned counsel for respondent No.2 has argued that the existence of rubbish or refuse in the bara, which is allegedly being used from the time of ancestors, is a weak type of evidence. In this regard, he has relied upon a decision of this Court rendered in the case of Bhan Singh and others Vs. Tej Singh and others, 1996 PLJ 519 and an unreported judgment of this Court passed in RSA No.549 of 2006 titled as `Narsi and another Vs. Phakiriya and others, decided on 13.07.2010. Learned counsel for respondent No.1 (Arjan Singh S/o Ram Singh) has submitted that there is no error in the judgment and decree of the learned First Appellate Court who has relied upon the site plan (Ex.D1/A) which has been prepared by the Draftsman by inspecting the plot over and above the site plan (Ex.P1) produced by the plaintiff which was prepared by the Draftsman on instructions of the plaintiff. I have heard both learned counsel for the parties and perused the available record with their able assistance. This is a case in which the dispute is with regard to an open plot, which is allegedly used as a bara by the plaintiff for storing batoras, cow dung RSA No.3281 of 1987 -4- ***** cakes and fuel wood etc. and ownership has been claimed by alleging that he is coming in possession since the time of their forefathers. On the other hand, possession is claimed by both the defendants. There is no evidence on record about ownership of the plot in dispute. Insofar as the appeal filed by Ram Bhaj (defendant No.1) is concerned, he is aggrieved against the finding recorded by the learned Courts below discarding the evidence led by him as he had alleged that he has become owner of the disputed plot by virtue of purchase from Dhajja Ram about 18-20 years back for `1,400/- without execution of any sale deed. However, the said plea was not taken by Ram Bhaj in his written statement. In this view of the matter, it cannot be believed that he has purchased the disputed plot from Dhajja Ram because had it been so, it would have been his first plea in the written statement to claim his ownership. Moreover, the alleged sale in favour of Ram Bhaj by Dhajja Ram is not legally sustainable as it is well settled that a property worth `100/- if sold, requires compulsory registration. Therefore, the appeals filed by Ram Bhaj, namely RSA No.3680 of 1987 and RSA No.3217 of 1987, are totally without any merit and as such, the same are hereby dismissed. Now, the only appeal left to be decided is the one filed by the plaintiff (Arjan Singh son of Khazan Singh) who is aggrieved against the reversal of the judgment and decree of the learned Trial Court. In the case of Sarju Pershad Ramdeo Sahu (supra), the Supreme Court has held that it is a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which had escaped the Trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the Appellate Court should not interfere with the finding of the trial Judge on a question of fact, but it also observed that this certainly does not mean that when an appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the Trial Judge. It has been held by this Court in the case of Bhan Singh and others (supra) and Narsi and another (supra) that storing of cow dung cakes, batora, installation of pegs is a week type of evidence for the purpose of proving possession of a particular party, therefore, it is to be seen as to which of the party is speaking truth in the Court. The plaintiff has given the description of the plot in dispute and has tried to elaborate it by virtue of a site plan (Ex.P1) which was prepared on 19.12.1983 and RSA No.3281 of 1987 -5- ***** himself appeared as PW3 in which gali is shown towards East and South and phirni is shown towards West and North, whereas the same Draftsman Manohar Lal prepared another site plan Ex.D1/A for defendant No.1 in which gali is shown just adjacent to the plot in dispute towards West and the Gobar Gas Plant of defendant No.1 is categorically shown within the boundary of the same property. PW3 Manohar Lal, when appeared in the witness box, had stated that he has prepared the site plan Ex.P1 on the instructions of the plaintiff and in cross- examination he had admitted that site plan Ex.D1/A is prepared by him by visiting the spot. Generally, this situation arises in many cases before the Courts below where both the parties rely upon their respective site plans, but the question is which site plan should be given preference by the Court, whether the site plan which is prepared on instructions of the party or the site plan which is prepared by the Draftsman by visiting the spot. The answer to this question is that the site plan which is prepared by visiting the spot, which is otherwise called mauka naksha nazri, takes precedence over the site plan which is prepared by the Draftsman, on the instructions of the party, using his imagination. Such a site plan has less value than the site plan prepared after visiting the spot. Thus, the finding which has been recorded by the learned First Appellate Court in this regard calls for no interference at all nor there is any substantial question of law involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908. Hence, the appeal filed by the plaintiff is also dismissed. Resultantly, all the three appeals are hereby dismissed. The parties shall bear their own costs. A photocopy of this order be placed on the files of other connected cases. February 01, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE