RSA No.1611 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1611 of 1985 Date of Decision: 19.05.2010 Karni ..Appellant Vs. Pehlada (Dead) through LRs. & Anr. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Vishal Malik, Advocate, for the appellant. None for the respondents. --- 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 Digest? --- Vinod K.Sharma,J. (Oral) This is appellant/plaintiff's appeal against the judgment and decree dated 15.03.1985 passed by the learned lower appellate court, vide which suit for possession filed by the plaintiff/appellant was dismissed by RSA No.1611 of 1985 2 reversing the judgment of learned trial court. Plaintiff/appellant filed a suit against the defendant/ respondents for possession after demolishing the construction raised by the defendants on the property situated in village Shahar Malpur, as fully detailed in the head-note of the plaint. Pleaded case of the plaintiff was, that he was owner in possession of the suit property situated at village Shahar Malpur since the time of his forefathers. Fifteen years prior to the filing of the suit, the plaintiff filled the plinth of the said property which was being used for storing manure, dung-cakes, dry fodder, and tethering his cattle. The case of the plaintiff was that said village was part of Block Samiti Samalkha. About 6 years back Block Samiti Samalkha made survey of the houses and plots and streets of the village within the Lal Dora with the help of Gram Panchayat, Shahar Malpur. At the time of survey, plot No.547 was entered in the name of the plaintiff/appellant, whereas defendant No.1 was shown to be the owner of plot No.557. Defendant No.2 is the real brother of defendant No.1. The case of the plaintiff/appellant was, that defendants illegally occupied the southern portion of the suit property by forcibly dispossessing the plaintiff/appellant. The case of the plaintiff/appellant, therefore, was that the property on the southern side was encroached upon by the defendant/respondents. The suit was contested by the defendant/respondents by controverting the averments made in the plaint. Suit was said to be not maintainable. Defence taken was that the plaintiff was not owner in RSA No.1611 of 1985 3 possession of the suit property. It was also denied that he had raised the foundation on the said plot. Factum of storing of manures, dung-cakes, dry- fodder and plot being used for tethering cattle was also denied. It was also denied that any survey was carried out by the Block Samiti in the village. It was denied that the suit property bearing No.547 was entered in the name of plaintiff/appellant. Defendants claimed to be owner in possession of the plot in dispute on which they constructed a room and manger. Objection was taken with regard to the valuation of the suit. On the pleadings of the parties, learned trial court framed the following issues. 1. Whether the plaintiff is the owner of the property in dispute shown red in the site plan? OPP 2. Whether the defendants took forcible possession of the site in dispute from the plaintiff? OPP 3. Whether the defendants are owners in possession of the site in dispute?OPD 4. Relief. Issues No.1 and 2 were taken up together by the learned trial court and on appreciation of evidence specially, the statement of PW 1 claiming that he was owner of the site in dispute and was in possession since the time of his forefathers being share-holder in the shamlat of village. He had also deposed to support the averments made in the plaint regarding use of the property. It was also deposed that defendants encroached upon half portion of the property and raised illegal construction thereon. Reliance RSA No.1611 of 1985 4 was also placed on the report of the local commissioner who visited the spot and reported that the plaintiff was owner of the property in dispute which was encroached upon by the defendant/respondents on the southern side. Stand of the plaintiff was supported by PW 3 Mai Chand, Chowkidar of village, as also PW 4 Suraj Mal, panch of the Gram Panchayat. Similarly, stand of the plaintiff was also supported by PW 5 Vishnu Dutt, Sarpanch of the village. He proved the survey of the village and proved Aks Sijra showing that plot No.547 was under the ownership and possession of the plaintiff/appellant, whereas plot No.557 was under the ownership of Pehlada defendant, whereas plot No.556 fell to the share of Harphool. Plot No.611 was shown under the ownership of Manga. Stand of the plaintiff/appellant was also supported by PW 6 Mange, lamberdar of village. The learned trial court accepted the evidence led by the plaintiff/appellant and did not agree with the oral evidence led by the defendant i.e. the statement of defendant as DW 1, and DW 2 Telu. The learned trial court held that the statements of these witnesses did not carry any weight, in view of the oral and documentary evidence led by the plaintiff/appellant. Issues No.1 and 2 were decided in favour of the plaintiff/appellant, and it was held that the plaintiff was the owner of the property in dispute, which was shown in red colour in the site plan. It was held that the defendants took forcible possession of the site in dispute. Defendants were held not to be owners but were in illegal possession. Consequently the suit was decreed for possession of the plot by RSA No.1611 of 1985 5 demolishing the construction raised by the defendants. Defendant/respondents preferred an appeal against the judgment and decree passed by the leaned trial court. The learned lower appellate court reversed the findings, recorded by the learned trial court. The reason for reversing the findings by the learned lower appellate court was, that the plaintiff/appellant in order to prove that he was owner in possession of plot measuring 25 x 18 yards and that the defendant/respondents had taken illegal possession of half share in October, 1980, had led evidence of PW 3 Mai Chand Chowkidar, PW 4 Suraj Mal and PW 5 Vishnu Dutt, Sarpanch of the village and PW 6 Mange Lamberdar, besides his own statement. Learned lower appellate court held that PW 3 i.e. Chowkidar was cultivating the land of the plaintiff/appellant, and that his house was situated at a distance from the plot in dispute. It was, therefore, held that PW 3 deposed for the plaintiff/appellant being his tenant. The learned court also held that PW 4 Suraj Mal had stated that the defendant/respondents had taken possession of the whole of the land belonging to the plaintiff/appellant, which was contrary to the pleaded case. The learned court also held that demarcation report could not be believed as it was not signed by the Sarpanch specially, when he could not describe boundary of the plot. The court held that PW 4 was incapable to tell the boundary of the site in dispute shown in the site plan. Non-production of the Sarpanch who was said to be present at the time of demarcation and Zile Singh, Patwari was taken to be adverse, to disbelieve Ex.P.3. RSA No.1611 of 1985 6 The learned lower appellate court also held that the statements of the witnesses of the plaintiff were discrepant. The learned appellate court did not accept the report of the local commissioner for the reason that the report was submitted prior to summoning of the defendants/respondents and therefore, no opportunity was given to them to file objections. The report was not read in evidence. The learned lower appellate court, believed the version of the respondents and reversed the finding of the learned trial court on issues No.1 to 3 and dismissed the suit Mr.Vishal Malik, learned counsel appearing on behalf of the appellant contended, that the following substantial questions of law arise for consideration in this appeal. 1. Whether the learned lower appellate court was justified in reversing the judgment of the learned trial court without meeting with the reasoning given by learned trial court and without recording that the view taken by learned trial court was not possible in view of the evidence led? 2. Whether the learned lower appellate court was justified in reversing the finding of the learned trial court by ignoring the exhibited documents i.e. Aks sijra showing demarcation of the plots? In support of the substantial questions of law, the learned counsel for the appellant contended, that the plaintiff besides appearing in the witness box, had also proved Ex.P.3, showing that disputed plot No.547 RSA No.1611 of 1985 7 was under the ownership of the plaintiff/appellant as per survey. This fact was supported by the oral evidence of Sarpanch, Panch as well as Chowkidar of village. Their evidence could not be shattered, therefore, could not be disbelieved merely because they were connected with the plaintiff/ appellant. The defendants/respondents had led no documentary evidence, except oral statement of the persons. No evidence was also led in support of ownership of the property. The contention of the learned counsel for the appellant has force. It is well established law, that appellate court cannot reverse the findings recorded by the learned trial court, merely for the reasons that a different view is also possible on appreciation of evidence. Pleadings and the evidence led in this case, show that there was oral and documentary evidence of the plaintiff/appellant, which was tried to be controverted by the oral evidence by the defendants. However, there was an additional factor in favour of the plaintiff/appellant, i.e. Ex.P.3 showing the demarcation carried out by Zile Singh with the assistance of the Sarpanch of the Gram Panchayat. The document was proved and duly exhibited. In addition, there was report of local commissioner, which was on record, as the inspection was carried out after notice to the defendants. It was for the defendant/respondents, to file objections, and no notice was required to be given by the learned trial court. The learned lower appellate court committed an error in law in rejecting the documentary evidence. The first substantial question of law, therefore, RSA No.1611 of 1985 8 is answered in favour of the appellant and against the defendant/respondents. Second substantial question of law also deserves to be decided in favour of the appellant, as Ex.P.3 was duly proved by the Sarpanch of the village and it was for the defendants/respondents to rebut the evidence but they failed to lead any evidence to controvert the documentary evidence. Adverse inference could not be drawn against the appellant as held by learned lower appellate court. It is well settled law, that oral evidence cannot be read to controvert the documentary evidence. Consequently second substantial question of law is also answered against the defendants/ respondents. The appeal is accordingly allowed. The judgment and decree passed by the learned lower appellate court is set aside and that of trial court is restored, but with no order as to costs. (Vinod K.Sharma) 19.05.2010 Judge rp