RSA No. 75 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.M. No. 2069-C of 2011 & RSA No. 75 of 2010 Date of Decision:15.12.2011 Chander Singh and another ....Appellants. Versus Ram Karan ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Pankaj Midha, Advocate for the appellants. Mr. S.K. Verma, Advocate for the respondent. AJAY KUMAR MITTAL, J. C.M. No. 2069-C of 2011 This is an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for producing additional evidence. The appellants by way of instant application wants to produce the following documents by way of additional evidence:- 1. Water bill, 3 to 6/90 Annexure A-1 2. Notice, 1994-95 Annexure A-2 3. Receipt dated 9.8.2000 Annexure A-3 4. Bill dated 15.11.2000 Annexure A-4 5. Bill dated 13.9.2002 Annexure A-5 Learned counsel for the appellants was unable to satisfy the Court regarding the relevancy of the aforesaid documents. RSA No. 75 of 2010 -2- Accordingly, the present application is dismissed. RSA No. 75 of 2010 1. The defendants-appellants had preferred this appeal against the judgment and decree dated 30.11.2009 passed by the appellate court vide which the judgment and decree dated 31.5.2008 passed by the trial court decreeing the suit of the plaintiff-respondent was upheld. 2. Briefly stated, the facts necessary for adjudication as narrated in the appeal are that the plaintiff filed a suit for possession of the part of residential house as mentioned in the head note of the plaint with consequential relief of recovery of mesne profits @ Rs.500/- per month along with interest at the rate of 18% per annum against the defendants. It was pleaded that Munshi Ram, father of the plaintiff was the owner in possession of plot No.3 measuring 250 square yards situated at Hakikat Nagar Colony, Apollo Road, Jind. Said Munshi Ram bequeathed the plot by executing Will dated 14.2.1990 in favour of the plaintiff. He died on 19.8.1995 and after his death, the plaintiff became the owner in possession of the plot which is now a house. The real brothers of the plaintiff wanted to dispossess the plaintiff which led him to file a civil suit No. 144 dated 20.2.1998. The said suit was decreed vide judgment and decree dated 20.11.2003 declaring the plaintiff to be owner in possession of the plot in dispute and restraining his brothers from interfering into the possession of the plaintiff over the suit property. Defendant No.2 took illegal possession of the part of the house and despite repeated requests he failed to make any response which gave rise to the plaintiff to file the present suit. RSA No. 75 of 2010 -3- 3. Upon notice, the defendants filed a joint written statement raising various preliminary objections. On merits the averments of the plaintiff were denied. However, it was admitted that Munshi Ram (since deceased) was the owner of the plot vide sale deed dated 17.10.1966 which he purchased from one Smt. Nimbo Devi. It was denied that said Munshi Ram ever executed a Will dated 14.2.1990 in favour of the plaintiff. The prayer for dismissal of the suit was made. Two additional pleas were also taken by the defendants that the suit was liable to be stayed as per Section 10 of the Code of Civil Procedure and it was not instituted as per amended provisions of the Code of Civil Procedure. 4. From the pleadings of the parties, the trial court framed the following issues:- “1. Whether the plaintiff is entitled for a decree for possession of property as detailed in the head note of the plaint on the ground mentioned in the plaint? OPP 2. Whether the suit of the plaintiff is not maintainable in the present form? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the suit of the plaintiff is estopped by his own act and conduct? OPD 5. Whether the suit is liable to be stayed as per provision under Section 10 CPC? OPD 6. Whether the suit is false and frivolous? OPD 7. Relief.” RSA No. 75 of 2010 -4- 5. The trial court on appreciation of the evidence led by the parties, decreed the suit of the plaintiff vide judgment and decree dated 31.5.2008. Feeling aggrieved, the defendants-appellants took the matter in appeal and the appellate court vide judgment and decree dated 30.11.2009 upheld the judgment and decree of the trial court and dismissed the appeal. Hence, the present regular second appeal. 6. I have heard learned counsel for the parties and have perused the record with their assistance. 7. Learned counsel for the appellants submitted that the appeal raises the following substantial questions of law:- “(1) Whether Marks Documents placed on record can be read into evidence? (2) Whether presumption of truth can be attached to Municipal records and Electricity records etc.? (3) Whether finding recorded by both the courts below is perverse and has occurred due to non-appreciation of evidence?” 8. According to the learned counsel for the appellants, the compromise was produced as mark “C' and in view of Section 58 of the Indian Evidence Act, the same was to be taken into consideration by the courts below and in the absence of the same, the findings recorded by the courts below are unsustainable. Reliance was placed on the judgment of the Apex Court in Gannmani Anasuya and others v. Parvatini Amarendra Chowdhary and others, 2007(3) CCC 248(SC) and of this Court in Chandi Ram v. Reshma Devi and others 2010(3) RSA No. 75 of 2010 -5- PLR 510. Further, the findings of courts below was challenged on the ground being based on consideration of inadmissible evidence and non- appreciation of evidence on record. 9. Learned counsel for the plaintiff-respondent on the other hand supported the judgments and decrees passed by both the courts below. 10. After having given my thoughtful consideration to the respective submissions of learned counsel for the parties, I do not find any merit in the appeal. 11. The trial court after appreciation of evidence while adjudicating issue No.1 concluded that the plaintiff had proved his title to the suit property whereas the defendants had failed to establish that they were in possession for the last 16 years as alleged. The trial court held that the plaintiff was entitled to a decree for possession. The findings recorded by the trial court in para 18 reads thus:- “18. As already discussed, vide judgment and decree Ex.P2 and Ex.P3, the title of the plaintiff has been duly proved. All the documents placed on record by the defendant are of recent origin and do not prove the possession of the defendants for the last 16 years as alleged. A specific stand has been taken by the defendants that a compromise had taken place between the parties but the defendants have failed to prove the said compromise, though a photo copy of has been placed on record as mark X. Not even a single signatory of the compromise mark RSA No. 75 of 2010 -6- X has been examined by the defendants to lend any credence to the said compromise. Apart from the said document, all other documents are marked which cannot be read into evidence as is the settled law. Therefore, seen from any angle, once the plaintiff has proved that he is the owner of the suit land, he cannot be deprived from enjoying the same. As such, the defendants are liable to hand over the peaceful vacant possession of the said portion to the plaintiff. Though, at the time of arguments, learned counsel for the plaintiff has pressed for mesne profits. However, no evidence apart from the statement of plaintiff himself has been led to ascertain the quantum of mesne profits in this regard. Therefore, mesne profits are not allowed for the use and occupation of the disputed portion by the defendants. This issue accordingly stands decided in favour of the plaintiff and against the defendants.” 12. On appeal, the findings of the trial court were affirmed vide judgment and decree dated 30.11.2009. The lower appellate court while affirming the findings of the trial court noticed as under:- “Arguments of learned counsel for the appellants that plaintiff/respondent has not placed any document to show his title has no force. On the basis of will executed by Munshi Ram in his favour on 14.2.90, plaintiff/respondent Ram Karan filed suit for RSA No. 75 of 2010 -7- declaration to the effect that he is owner in possession of plot no.3 measuring 250 sq. yards and the defendants i.e. Ram Kishan, Inder Singh and Chander Singh be restrained from interfering and illegally and forcibly occupying the suit land. The suit was decreed vide judgment and decree dated 20.11.2003 Ex.P2 and P3. A perusal of judgment Ex.P2 reveals that the defendants appeared in that suit and contested the same by filing written statement. At the stage of evidence they opted not to contest the suit and were proceeded against exparte vide order dated 2.11.2000 and thereafter exparte judgment and decree was passed. Chander Singh present appellant when appeared into witness box as DW2 admitted in the cross examination about filing of that suit and admitted that in that suit he engaged Sh. D.P. Deshwal Adv and except one or two peshi, he attached all the dates fixed in that case. He also admitted that that suit remained pending for five years and ultimately decided against him. It all shows that he had knowledge of the civil suit no. 144 instituted on 20.2.98 and judgment and decree dated 20.11.2003. By placing on file judgment and decree Ex.P-2 and P-3, the plaintiff/respondent has placed on file the documents showing his title over the suit land. During the course of arguments both the RSA No. 75 of 2010 -8- counsel for the parties admitted that appellants/ defendants filed application under Order 9 Rule 13 CPC for setting aside exparte judgment and decree Ex.P-2 and P-3 and the application was dismissed. Aggrieved with the dismissal of the application, the appellants filed appeal and that appeal was also dismissed. Hence from the copy of the judgment Ex.P-2 title of the plaintiff/respondent over the suit land stands duly proved. Appellants/defendants placed on file notice of assessment register Ex.D-1, electricity bill Ex.D-2 and receipt Ex.D-3 in order to prove their ownership and possession over the suit land but from these documents possession of the defendants/appellants over the suit land for the last 16 years is not proved. DW3 Raj Kumar House Tax Clerk admitted in his cross examination that name of Basakhi appeared into assessment register for the year 2001-2002 and he did not know on which basis the name was changed but said that on the basis of assessment survey there is change in the name but he admitted that he did not go for assessment and did not see location of the house. From the evidence of DW3 Raj Kumar and from the documents Ex.D-1 and D-3 long possession of 16 years of the appellants/defendants over the suit land is not proved. Similarly DW4 Raj Guru LDC proved bill RSA No. 75 of 2010 -9- Ex.D-2 which is of the year 2004 whereas the plaintiff/respondent alleged that in the year 2003 the possession of the house in dispute was taken by defendant no.2. Learned trial court considered documents and evidence produced by the appellants/defendants. Defendants/appellants also placed on file compromise mark X to show their long possession but being marked document it cannot be looked into. The findings given by trial court that the plaintiff/respondent is owner of the suit land and defendants/appellants are liable to hand over the peaceful vacant possession of the said portion to the plaintiff do not suffer from any infirmity. Learned trial court rightly decided issue no.1 in favour of the plaintiff/respondent. Similarly findings given on issues no.2 to 6 do not suffer from infirmity. Even during the course of arguments learned counsel for the appellants/defendants failed to point out how the suit is not maintainable in the present form and how the plaintiff has no locus standi to file the suit. Nothing has been placed on file by defendants/appellants to show that suit is liable to be stayed as per provisions of section 10 CPC. Nothing has been placed on file to show that any earlier instituted suit is pending in any court regarding the present subject matter/land between the same RSA No. 75 of 2010 -10- parties. Hence the findings given by learned trial court on issues no.2 to 6 are affirmed. 13. The only material relied upon by the learned counsel for the defendants-appellants was regarding mark “C” alleged compromise dated 24.2.1998. It may be noticed that no reliance could be placed on the same in the absence of its proof by the defendants because if the matter had been compromised between the parties, there was no occasion for the plaintiff to have litigated further after the said date and decree could have been passed in terms thereof. In such a situation, the defendants were to produce cogent evidence that there was valid agreement between the parties. The defendants having failed to produce any material, the agreement could not be acted upon which was produced by way of mark “C”. Even if there was some reference with regard to admission of agreement, whether it was acted upon or not was a matter of evidence which was to be proved by the defendants-appellants which they failed to do. Therefore, the judgments relied upon by the learned counsel for the appellants in Gannmani Anasuya and Chandi Ram's cases (supra) do not advance their case being on individual fact situation involved therein. Further, vide order of even date, CR No. 234 of 2010 for setting aside the exparte judgment and decree dated 20.11.2003 has been dismissed. 14. Learned counsel for the appellants with reference to any specific material or evidence was not able to justify that the findings recorded by both the courts below were either contrary to record or as a result of misreading of evidence. RSA No. 75 of 2010 -11- 15. In view of the above, no question of law much less a substantial question of law arises for consideration of this Court. Accordingly, there is no merit in this regular second appeal and the same is hereby dismissed. December 15, 2011 (AJAY KUMAR MITTAL) gbs JUDGE