RSA No.486 of 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.486 of 1991 Date of Decision: 16.04.2009 Dhani Ram & Ors. ..Appellants Vs. Siri Niwas & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.P.S.Kang, Advocate, for the appellants. Mr.Kabir Sarin, Advocate, 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) The defendant/appellants by way of this regular second appeal, have challenged the judgment and decree dated 16.11.1990 passed by RSA No.486 of 1991 2 learned lower appellate court vide which suit filed by the plaintiff- respondents for permanent injunction stands decreed. The appeal raises the following substantial question of law: “Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of admissible evidence and taking into consideration inadmissible evidence, thus perverse?” The plaintiff/respondents brought a suit seeking injunction against the appellant/defendants from interfering in their ownership and possession over the property marked by letters A B C J H G F E D as described in the head-note of the plaint and shown in the site plan Ex.P.4 and also for possession of site marked by letters J H G K after demolition and removal of the construction raised thereon. The case set up by the plaintiffs was that the property in dispute was the ownership of plaintiff No.1 out of which, the property marked A B C D has been sold by plaintiff No.1 in favour of plaintiff No.2 vide registered sale deed dated 30.1.1985, and that plaintiff No.2 was owner in possession of the property marked by letters A B C D. Other property was said to be the ownership of plaintiff No.1. It was also the case of the plaintiffs that property marked by letters J H G K has been encroached upon by defendants No.1 to 4 about 20 days prior to the institution of the suit. Property was said to be bearing Sr.No.667 in the assessment register of Municipal Committee, Anandpur Sahib for the year 1983 to 85 and its earlier serial number was 634 from 1981 to 1983 in the assessment register RSA No.486 of 1991 3 of Municipal Committee. It was claimed that the defendants have no right, title or interest in the suit property. It was also pleaded that the defendants raised construction over the part of the suit property marked by letters J H G K and threatened to make further construction in the property in dispute. The suit was contested. Defendants No.1 to 5 filed joint written statement, whereas defendant No.6 who was impleaded in the suit subsequently, filed independent written statement. It was the stand of the defendant/appellants that neither plaintiff No.1 was owner of the suit property or any part thereof nor he was in possession of it. His title to transfer this property to plaintiff No.2 by way of sale deed was also challenged by claiming it to be illegal, unauthorised, null and void. Site plan was claimed to be wrong. It was also claimed that the property mentioned in the assessment register of Municipal Committee had no relevance or concern with the suit property. Suit was said to have been filed in collusion with Municipal committee. The property was said to be earlier in the ownership and possession of Amar Chand alias Nikka Ram, defendant No.5, who was said to have gifted the same in favour of Kabir Panthi Samaj Sudhar Sabha, defendant No.6 by way of registered gift deed. Property in dispute was said to be in the administrative control, possession, and ownership of defendant No.6. It was also pleaded that construction already stood raised therein which existed for the last more than 3 years, when Murti of Siri Kabir Maharaj was installed. Preliminary objection of estoppel was also taken. It was also pleaded that the suit was RSA No.486 of 1991 4 not within time. On the pleading of the parties learned trial court was pleased to frame the following issues:- 1. Whether plaintiff No.1 was the owner in possession of the premises A B C D and he sold the same in favour of plaintiff No.2 vide sale deed dated 30.1.85 and delivered the possession to him? OPP 2. Whether plaintiff No.1 is the owner in possession of the premises C J K G F E D? OPP 3. Whether plaintiff No.1 is the owner of the property J H G K which has been illegally encroached upon by the defendants about 20 days before the filing of the suit? OPP 4. Whether Amar Chand alias Nikka Ram son of Ramji Dass was the exclusive owner in possession of the suit properties? OPD 5. If issue No.4 is proved whether said Amar Chand gifted these properties in favour of Kabir Panthi Sudhar Sabha vide gift deed dated 27.7.81 and 20.6.83 and since then it is coming in possession of these properties as owner? OPD 6. Whether the gift deeds are illegal unauthorised without consideration, null and void? OPP 7. Whether the suit is not maintainable in the present form? RSA No.486 of 1991 5 OPD 8. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD 9. Whether the suit is bad for mis-joinder of parties? OPD 10. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 11. Whether the plaintiffs are entitled to the injunction prayed for? OPP 12. Relief. Issues No.1 to 4 were taken up together. In support of their case, Siri Niwas, plaintiff/respondent appeared as PW 1 and proved on record copies of Register of Municipal Committee Ex.P.1 to P.3 and site plan Ex.P.4. He also examined PW 2 Gian Chand who deposed that the suit property was in possession of plaintiff No.1 for the last 7-8 years and prior to that it was in possession of Chamba Ram, maternal uncle of plaintiff Siri Ram. Ram Kumar, Draftsman was examined as P.W 3 who claimed to have prepared site plan Ex.P.4. P.W.4 Mehnga Ram deposed that the plaintiffs were owners of the suit property which was previously owned by Chamba Ram. Clerk of Municipal Committee appeared as P.W.5 and proved certificate Ex.P.5 issued in favour of plaintiff No.1. He also deposed that Nika Ram alias Amar Chand or his brother Amar Nath was never recorded as owner of the property in the assessment register from 1960 onwards. In addition, the plaintiffs tendered in evidence copy of judgment of the court Ex.P.7, copy RSA No.486 of 1991 6 of decree sheet Ex.P.8 and copy of pedigree table Ex.P.9, copies of mutation Ex.P.10 and P.11 as also copy of order of the court as Ex.P.12 and decree sheet Ex.P.13 and also copy of the statement of Rattan Singh made in the court as Ex.P.14, copy of jamabandis for the year 1977-78 was proved as Ex.P.15, copy of town planning scheme, Municipal Committee Anandpur Sahib as Ex.P.16. Defendant/appellants examined Hardial Singh DW 1 to prove the gift deeds Ex.P.D.3 and D.4 which were said to have been executed by defendant No.5 in favour of defendant No.6. He also proved that foundation stone was laid for room of Kabir Mandir in the suit property and also proved the publication of the same in the newspaper mark-A. Witnesses were also produced to depose that while witness remained as Municipal Commissioner in the Municipal Committee,Anandpur Sahib for about 5 years, neither Chamba Ram nor Siri Niwas submitted any application to Municipal Committee, that defendant No.6 had encroached upon, their property. Avtar Singh clerk Municipal Committee was examined as DW 2 who proved the site plan submitted by defendant No.6 for construction on the suit property to the Municipal Committee which was said to have been sanctioned, on 6.5.1982 vide Ex.D.1 on record. As already mentioned gift deeds were also proved. Witnesses were also produced to prove the possession of defendant No.6 over the suit property. ` Learned trial court held that the evidence led to prove the title by the plaintiffs could not be looked into as such plea was not taken in the pleadings, either in the suit or in the replication and thus, the evidence led RSA No.486 of 1991 7 was beyond pleadings. The learned trial court further held that though it was claimed that plaintiff No.1 Siri Niwas acquired the suit property from Chamba Ram, through Will the said evidence was also beyond pleadings. The entry in the name of Chamba Ram's ownership was found mentioned in assessment register for the year 1978-79 Ex.P.1 where number of property was shown as 650, whereas ownership was claimed in the plaint on the basis of entry starting from 1983 onwards. Evidence in this regard was also held to be beyond pleadings. Learned trial court on appreciation of evidence recorded a finding that the plaintiff failed to prove that he was owner in possession of the property in dispute. The learned trial court also held that the defendants have failed to prove that Amar Chand alias Nikka Ram was owner of the property which could entitle him to gift away the property in favour of defendant No.6. It is pertinent to mention here that the learned trial court further found that plaintiff No.2 did not come forward to assert his possession over part of suit property shown by letters A B C D. Thus, by in view of the totality of the circumstances learned trial court, decided issues No.1 to 3 against the plaintiffs, whereas issue No.4 was decided against the defendant/appellants. On issue No.5 learned trial court was pleased to hold that even if defendants No.5 and 6 were not proved to be owners of the suit property still defendant No.6 was entitled to protect his possession against the plaintiffs who were neither proved to be owners nor in possession of the RSA No.486 of 1991 8 suit property at any time. Issue No.6 was decided in favour of the plaintiffs as defendant No.5 was not held to be owner of the suit property. On issue No.7 it was held that the plaintiffs were not proved to be in possession of the part of the suit property marked by letters A B C D and C D E F G K J C and therefore, the suit for injunction was held to be not maintainable. Issues No.8 and 9 were decided against the defendants, whereas issue No.10 was decided in favour of the plaintiffs. In view of the findings on issues No.1 to 3 and 5 it was held that the plaintiffs were not entitled to injunction. Consequently, the suit was ordered to be dismissed. The plaintiffs preferred an appeal against the judgment and decree passed by the learned trial court. Learned lower appellate court, however, reversed the findings by recording as under:- “8. After hearing the learned counsel for the parties, I find that the plaintiff had pleaded in his plaint that he was owner in possession of the suit property. He has although not pleaded that earlier the suit property was owned by Chamba Ram and then it devolved upon him under a will, in my opinion, the suit of the plaintiff cannot be thrown out on this ground alone. The facts required to be pleaded by the trial court while dismissing the suit, were to be brought only during evidence. All the facts constituting the suit are required to be pleaded which should be precise and by stretch of no imagination, it can be said that RSA No.486 of 1991 9 whole of the evidence has to be pleaded in the plaint. The plaintiff had pleaded himself to be owner of the suit property and it was to be proved during evidence that how he acquired the ownership rights. On the same lines, the trial court has observed that the evidence of ownership prior to the year 1983, was beyond pleadings. Again the plaintiff has to plead only the facts constituting his ownership rights and not the entries in the assessment register prior to 1983. On this score, therefore, the suit of the plaintiff could not be dismissed by the trial court. 9. The trial court has observed that the entries prior to 1978-79 in the name of Chamba Ram, alleged prior owner, have not been produced by the plaintiff purposely. It has been observed that the entries in the register for the year 1978-79, seems to have been manipulated by the plaintiff simply because the prior entries have not been produced. The plaintiff was to trace his ownership up to Chamba Ram only and he had shown that prior to the entries in his name, the property in dispute was entered in the name of Chamba Ram. All the entries prior to 1978-79 were not required to be produced and if the entries were otherwise, the defendants could produce them in rebuttal, showing that the property in dispute was not owned by Chamba Ram, as alleged by the plaintiff. The observations of manipulation of these entries by the plaintiff are also without any basis and those observations are only based on surmises RSA No.486 of 1991 10 and conjectures. There is change of ownership from the name of Chamba Ram to the name of Siri Niwas plaintiff in the assessment register Ex.P.2 for the year 1981-82 and 1982-83. It has been observed by the trial court that the change is not supported by any evidence i.e. by production of copy of order of the court dated 7.7.1982, the reference of which has been given in the assessment register. The official acts are presumed to have been done correctly in ordinary course of business and if there is a reference of an order dated 7.7.1982 in the assessment register Ex.P.2, it should be presumed that the change was made in pursuance of that order which has been mentioned in the assessment register. It has been stated by Siri Niwas while appearing as PW 1 that he had obtained the property in dispute by will from his maternal uncle. This fact has been corroborated by the production of copy of mutation exc.P.10 whereunder property of Chmba Ram was mutated in the name of Smt.Rukmani Devi his sister. Later on, Smt,Rukmani Devi also considered a will to have been executed by Chamba Ram in favour of Siri Niwas by virtue of judgment & decree exc.P.7and Ex/P.8. After the death of Chamba Ram, Smt.Rukmani Devi his sister, was entitled to succeed to his property and Smt. Rukmani Devi had considered that Chamba Ram had executed a will in favour of Siri Niwas, plaintiff. One Rattan Singh had filed a suit against RSA No.486 of 1991 11 Smt.Rukmani Devi and Siri Niwas in respect of some property in Ward No.III and the said suit was dismissed vide copy of judgment Ex.P.12. The trial court has observed that the said suit was filed on 30.3.1982 much after the gift deed Ex.D.3 executed in favour of defendant No.6 and that judgment has been ignored due to that reason. Although the said suit was dismissed as withdrawn, but the trial court had wrongly observed that the said suit was collusive only because it was filed after execution of the gift deeds in favour of defendant No.6. The trial court had already found the gift deeds in favour of defendant No.6 as a fictitious document. 10. The plaintiff has proved the assessment register Ex.P.1 showing the name of Chamba Ram in the column of ownership and vide Ex.P.2, name of Siri Niwas was entered deleting the name of Chamba Ram. It is the case of the defendants that property mentioned in the assessment register is not connected with the suit property and therefore, no benefit can be derived by the plaintiff out of these entries. The assessment register Exc.P.3 for the year 1982 to 1986 shows that in that very property, plot measuring 5100 sq. feet was in possession of Kabir Panthi Samaj Sudhar Sabha and this entry was made according to the note in that register in accordance with the sale deed dated 28.6.1983. Had it not been the same property, the name of Kabir Panthi Samaj Sudhar Sabha which the RSA No.486 of 1991 12 defendants alleged to be in possession of the suit property, should not have come to be recorded in the assessment register regarding the same prop0erty. The defendants claimed to be in possession of the property as owners under gift deed dated 27.7.19981 and another gift deed dated 20.6.83. It is alleged to be in possession of Kabir Panthi Samaj Sudhar Sabha and as already observed, the name of this Sabha finds mention in the same assessment register in which the name of Chamba Ram, the earlier owner and Siri Niwas the present owner, have been mentioned. Ex.D.5/B is the site plan of the property alleged to have been gifted by Nikka Ram in favour of said Sabha. The perusal of the site plan sows that all the four sides of the property alleged to have been gifted, fully tally with the suit property mentioned in the plaint. If all these facts taken together that a part of the property was gifted by defendant No.5 to Kabir Panthi Samaj Sudhar Sabha and that the same was entered in the assessment register for the year 1986 in the name of said Sabha and that the present suit also pertains to the same property with same boundaries, it comes to that the property in the name of Chamba ram then in the name of Siri Niwas and then alleged to have been in possession of defendant No.6 under the gift deed, are one and the same. The plaintiff has proved from the other evidence also that he succeeded to the entire property of Chamba Ram to the exclusion of Smt. RSA No.486 of 1991 13 Rukmani Devi, the sister of deceased Chamba Ram.” By affirming the finding on issue No.5 the appeal was allowed and suit decreed. Mr.P.S.Kang, learned counsel appearing on behalf of the appellants vehemently contended that the findings recorded by the learned lower appellate court are the outcome of misreading of evidence and also taking into consideration the inadmissible evidence, thus, perverse. The contention of the learned counsel for the appellants was that once the plaintiffs were claiming ownership under a Will, it was incumbent upon them to have pleaded their title and led evidence to prove the same. The contention of the learned counsel for the appellants was that the learned trial court was right in holding that the evidence beyond pleadings could not be looked into whereas the findings recorded by the learned lower appellate court are perverse. Admittedly except for pleadings that the plaintiffs were owners of the property in dispute, but no basis of ownership was disclosed either in the plaint or in the replication. There is force in the contention raised by the learned counsel for the appellants. It may be noticed that no oral evidence of ownership could be led nor assessment register could be taken to be a document of title. The ownership was claimed by the plaintiffs on the basis of Will, but neither the Will was pleaded or proved by evidence. In the absence of pleadings and evidence, it could not be said that plaintiff/respondents were owners in possession. Learned trial court had rightly held that even possession was not proved by leading cogent evidence. RSA No.486 of 1991 14 Mr.Kabir Sarin, learned counsel for the respondents, on the other hand, supported the judgment and decree, passed by the learned lower appellate court primarily on the ground that plea of ownership was raised and it was for the plaintiffs to have proved the ownership by way of evidence, which in fact was done by producing assessment register as well as copies of judgment and decree. No fault, therefore, can be found with the findings recorded by the learned lower appellate court. However, this contention cannot be accepted for want of evidence. Admittedly, ownership was claimed on the basis of Will, which was neither pleaded nor proved. It was for the plaintiff/respondents to prove their case. Plaintiffs can not succeed on weakness of the defendant/respondents. Once the claim of ownership was raised it was for the plaintiffs to have proved by producing the Will and proving the same as per section 63 (c) of Indian Evidence Act. Plaintiffs were further required to prove ownership of maternal uncle through whom the property was claimed. For the reasons stated substantial question of law is answered in favour of the appellants. It is held that the judgment and decree passed by the learned lower appellate court is the outcome of misreading of admissible evidence and taking into consideration of inadmissible evidence, thus, perverse. Resultantly, the appeal is allowed, the judgment and decree passed by the learned lower appellate court is set aside, and that of learned trial court is restored but with no order as to costs. 16.04.2009 (Vinod K.Sharma) rp Judge