IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Second Appeal No. 593/2001 (old No. 1305 of 1987) Bala Dutt .. Plaintiff/Appellant. Versus Bachuli Devi and 2 others .. Defendant/Respondents. Mr. R.C. Upadhyaya Advocate for the appellant. Mr. Sidharth Sah, learned counsel for the respondents. UDated 28-8-2008 UHon’ble B.C. Kandpal, J. This appeal under Section 100 of the C.P.C. has been preferred against the judgment and decree dated 8-4-1987 passed by Civil Judge, Almora, in Civil Appeal No. 13 of 1986, allowing the appeal and reversing the judgment and decree dated 11-6-1986, passed by the Munsif Almora in Civil Suit No. 88 of 1985, Bala Dutt Vs. Bachuli Devi and dismissing the suit. 2- Brief facts of the case, giving rise to this appeal are that the plaintiff/appellant is the resident of Village Katyurmarh town Bageshwar, Tehsil Bageshwar, and is owner in possession of the plots comprised in Khata Khautani No. 41 and the houses constructed over these plots to the extent of half share, whereas the remaining half share belongs to Durga Dutt and Laxmi Dutt, who were arrayed the defendant Nos. 2 and 3 in the suit. The Sahan of the houses constructed over plot Nos. 553 and 555 existed separately and a private lane contracts these houses with main market. This lane belongs to the plaintiff/appellant. In the southern side of plot no. 553 a vacant land measuring 5 ½ feet x 10 feet is also situated and the plaintiff is continuing in possession over this 2 piece of land. This land has been shown with yellow colour and letters Aa, Ba, Sa, Da, in the map annexed with the plaint. The defendant/respondent has no concern with the plots comprised in Khata Khautani No. 41, whereas the defendant Smt. Bachuli Devi is raising construction on the western side of the above mentioned private lane. By an amendment it was alleged that the defendant/respondent has dismantled the wall which was constructed by the plaintiff/appellant. It is also alleged that the defendant/ respondent is also opening doors and windows towards the private lane of the plaintiff/appellant. Hence the suit for injunction and possession was filed before the Munsif Almora. 3- The case was contested by defendant/respondent No.1, Smt. Bachuli Devi by filing her written statement and alleging therein that the plaintiff is in possession over 5/16 Nali of the land comprised in Khata No. 41 which originally belonged to Krishan Lal S/o Sri Lok Chandra, whereas the defendant is continuing in possession over 5/16 Nali land comprised in the Khata from the time of her ancestor, which is recorded in the names of Laxmi Dutt and Durga Dutt. It is also alleged by the defendant that an ancestral house of plaintiff and her brother exist over plot No. 556 and some years ago she renovated the same and the plaintiff has no concern with this house. A four feet wide lane existed between the houses of the plaintiff and the defendant and both the parties have been using this lane for beneficial use of their houses and the defendant has every right to open the doors and windows towards this lane. It was also pleaded that the defendant is constructing a double storeyed house and she is not raising any construction on the land of the plaintiff, hence the suit is liable to be dismissed. 3 4- The learned trial court framed the following issues in the suit:- 1- Whether the defendant No.1 is raising construction over plot No. 553 owned by the plaintiff as alleged by the plaintiff?. 2- Whether the defendant No.1 has no right to open the doors and windows towards eastern side of plot No. 553 and towards the western side of plot No.555, as alleged by the plaintiff?. 3- Whether the land situated in between plot Nos. 553 and 555 is a public lane as alleged by the defendant No.1 or it is in the sole ownership of the plaintiff?. 4- Whether the plaintiff has obstructed the said lane by constructing stairs, as alleged by the defendant No.1?. 5- To what relief, if any, the plaintiff is entitled to get?. 5- In support of their claims, parties adduced evidence in the suit. Thereafter the learned Munsif on considering the entire evidence on record and hearing learned counsel for the parties, came to the conclusion that the defendant has raised construction over parts of plot No. 553 and the plaintiff is entitled to get the construction demolished. He also came to the conclusion that the lane existing between plots 553 and 555 is in the joint use and occupation of both the parties and they have got no right to make any construction. It was also held that the plaintiff has not made any obstruction in the lane by constructing stairs. Hence he decreed the suit of the plaintiff with costs. 4 6- Aggrieved with the findings of the trial court, the defendant No.1 Smt. Bachuli Devi preferred civil appeal before the Civil Judge, Almora, who vide impugned judgment and decree dated 8-4-1987 allowed the appeal, set aside the judgment and decree dated 11.6.1986 passed by the Munsif and dismissed the suit of the plaintiff. 7- Feeling aggrieved by the aforesaid judgment and decree passed by the first appellate court, the plaintiff Bala Dutt has preferred this second appeal before this Court. 8- This appeal has been admitted on the following substantial question of law:- “Whether the discussion of the lower appellate court in para-9 of its judgment is correct?” 9- Heard learned counsel for the parties and perused the record. 10- Learned counsel for the plaintiff/appellant has submitted that the disputed land is a strip of land measuring 5 ½ feet x 10 feet which is part of plot No. 553, but during trial respondent dismantled the wall of the plaintiff and constructed tin shed forcibly over the land in dispute, therefore, the plaintiff got his plaint amended and decree for mandatory injunction and for possession was claimed. He also submitted that the disputed land is the part of the land purchased by the plaintiff through the sale deed, but the first appellate court has wrongly discarded the evidence adduced by the plaintiff on the point and holding that he is not owner in possession of the disputed land. 5 11- On the other hand learned counsel for the defendant/respondent has submitted that the plaintiff has failed to establish his title and he was not in possession of the disputed strip from prior to institution of the suit, therefore, the plaintiff was not entitled to get a decree for injunction and the first appellate court was justified in dismissing the suit of the plaintiff. He also submitted that no substantial question of law is involved in this appeal, and the same is liable to be dismissed. 12- From perusal of record it reveals that the plaintiff has instituted the suit for injunction against the defendant. On the one hand the plaintiff has failed to establish his title over the disputed land as no document was filed showing his ownership over the land in dispute, and on the other hand he has been out of possession over the disputed strip of land since before the institution of the suit. Further the plaint itself shows that according to the plaintiff the defendant has started construction over this strip of land and by an amendment it was pleaded that during pendency of the suit the defendant dismantled the wall belonging to the plaintiff, raised certain construction and dispossessed the plaintiff. Therefore, these admissions of the plaintiff show that the plaintiff became out of possession of the disputed land during pendency of the suit. No doubt, a persons in possession of an immovable property is entitled to defend his possession against any person, but for that purpose he must be in continuous possession of the land. In the instant case the plaintiff has neither got any title over the disputed plot nor he was in possession over it throughout. The proper course left with the plaintiff was to file suit for restoration of possession within six months from the date 6 of his alleged dispossession but a discretionary relief of injunction in any circumstance cannot be granted in his favour. 13- Here it may also be noted that the basis of the suit is the original sale deed by which the plaintiff/appellant claims to be the owner of the land in question. But that original sale deed which is the basis of the suit has not been produced by the plaintiff/appellant. The plaintiff/appellant has produced the photo copy of the sale deed by which he claims to be the owner and title holder over the property in question. That photo copy of the sale deed is paper No.8-C/1 to 5 available in the record of court below. It is an admitted situation that the photo copy of a document cannot be read in evidence in view of the provisions of Section 65 of the Evidence Act, which reads as follows:- “65. Cases in which secondary evidence relating to documents may be given- Secondary evidence may be given of the existence, condition or contents of a document in the following cases:- (a) when the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; and when, after the notice mentioned in section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in 7 writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily moveable; (e) when the original is a public document within the meaning of section 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.” 14- Admittedly the original sale deed by which the plaintiff/appellant claims to be the title holder over the land in question, must have been in his possession. Non production of the basis of the suit i.e. the alleged original sale deed creates an adverse inference against the plaintiff/appellant. The plaintiff/appellant has to establish the prima facie case in his favour, which he could do before the court below, but he has failed to do 8 so. Further the picture becomes clear on the basis of the statement of Bhuwan Chand Joshi, D.W.2. This witness is the son of Hari Ballabh Joshi who has transferred the land by way of the sale deed in favour of Krishan Lal. Thereafter Krishan Lal transferred the land in favour of plaintiff/appellant vide sale deed dated 14-9-84. On the basis of this sale deed the plaintiff/appellant claims to have the title over the land in question. Sri Bhuwan Chand Joshi has categorically stated in his deposition that the strip of 10 feet land which is the land in question, is not part of plot No.553. This witness is an independent witness and there is no reason to discard the testimony of this witness. The lower appellate court has rightly relied on the deposition of this witness. I do not find any infirmity in the finding recorded by the lower appellate court to this effect that the plaintiff could not establish his right and title over the land in question by way of any cogent and reliable evidence. 15- The learned counsel for the plaintiff/appellant also submitted that the Survey Commissioner also gave report that the disputed piece of land is part of plot no. 553 and this report was confirmed by the trial court therefore, the learned first appellate court has wrongly discarded that report. 16- On the other hand learned counsel for the respondent has submitted that total contradiction was there in the statements of the witnesses adduced in the case and the Commissioner’s report, therefore, the first appellate court was justified in discarding the said report. In support of his contention he has cited before me the case of Gopal Behera V. Lokanath Sahu reported in AIR 1991 Orissa 6. 9 17- I have gone through the ruling (supra) cited by learned counsel for the respondent. The facts of the above cited case are applicable to the facts of the present case. The Hon’ble Court in the cited case, has observed that in the event of serious discrepancies in Commissioner’s report and his evidence recorded in court, the said report should be rejected. In the instant case the plaintiff claims his title through a sale deed dated 14-9-84 executed by Krishan Lal. It is admitted case that Krishan Lal has derived his title from Bhuwan Chand Joshi and his brothers who are sons of Hira Ballabh Joshi. Bhuwan Chand Joshi, D.W.2 has categorically denied that the strip of land was ever transferred to Krishan Lal. He also stated that this portion of land never belonged to him or his father. Therefore, the report of Survey Commissioner showing the disputed land as part of plot No. 553, cannot be said a reliable piece of evidence and the first appellate court has rightly discarded the same. 18- For the reasons stated above the impugned judgment and decree rendered by first appellate court requires no interference and it is concluded by finding of facts. 19- I find that no substantial question of law is involved in this appeal. It is, therefore, held that the discussion of the first appellate court in para-9 of its judgment is correct and it cannot be said to be against the weight of the evidence available on record. The appeal lacks merit and is liable to be dismissed. 10 20- Accordingly, the appeal is dismissed. The impugned judgment and decree dated 8-4-1987, passed by lower appellate court is hereby confirmed. 21- The interim stay, if any, shall stand vacated. ISB (B.C. Kandpal, J.) 11