IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1678 of 1984 Date of Decision: 9.3.2010 Paras Ram. ....... Appellant through Shri H.N.Mehtani, Advocate. Versus Bhaiya Ram. ....... Respondent through shri V.K.Jain, Senior Advocate with Shri J.L.Malhotra, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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 the Digest? .... Mahesh Grover,J. The defendant has filed this Regular Second Appeal against the judgment and decree dated 12.4.1984 passed by the Additional District Judge, Sonepat (hereinafter described as `the first appellate Court') vide which the appeal of the plaintiff preferred against judgment and decree dated 2.3.1983 of the Senior Sub Judge, Sonepat (referred to hereinafter as `the trial Court') was partly accepted. A suit for permanent injunction was filed by the plaintiff seeking to restrain the defendant from interfering in his proprietary and possessory rights over the suit property. He had set up a sale deed dated R.S.A.No.1678 of 1984 -2- .... 29.11.1978 to claim his ownership on the area which was described as ABCD and shown in the red colour in the plan attached with the plaint being a part of the bigger plot depicted by letters ABCDEFGHJD situated in killa no.65/1, Jamalpura Khurd Area, Sonepat. It was asserted by the plaintiff that he had purchased this property from one Bihari Lal and that the defendant was interfering in his possession. He also pleaded that prior thereto, proceedings under Sections 107/151 of the Cr.P.C. were initiated regarding this very plot inter se between the parties and in that, the defendant had admitted the his ownership. The defendant, upon notice, appeared and contested the suit. He also set up a plea of his ownership and possession over the suit property. It was pleaded that the suit property was not owned by the plaintiff, but it was part of khasra no.42 which was gair mumkin johar and the same was filled by him at the cost of Rs.10,000/-. It was further pleaded that he was in possession of the same for the last more than 10 years and by implication, he set up a plea of adverse possession. The proceedings under Sections 107/151 of the Cr.P.C. were, however, admitted. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is owner in possession of the plot in dispute?OPP 2. Whether the plot in dispute is a part of killa no.65/1, as alleged in para no.1 of the plaint?OPP 3. Whether the defence of the defendant is liable to be struck R.S.A.No.1678 of 1984 -3- .... off in view of the defendant not filing the proceeding of address?OPP 4. Whether the suit does not lie in the present form?OPD 5. Whether the plaintiff has no cause of action against the defendant?OPD 6. Relief. The trial Court, after appraisal of the entire evidence on record, dismissed the suit of the plaintiff. The trial Court, while determining the issue of ownership, concluded that it cannot be said that the plaintiff was owner of the plot in question except 12 square yards of land. While returning this finding, it relied upon the report of the Local Commissioner. Feeling aggrieved, the plaintiff filed an appeal which was partly accepted by the first appellate Court. It upset the finding of the trial Court regarding ownership and held that the plaintiff was owner of the suit property,but it did not find his possession over the same. Dis-satisfied with the judgment & decree of the first appellate Court, the defendant has preferred the instant appeal, whereas the plaintiff has filed cross objections challenging the aforesaid finding. Learned counsel for the defendant-appellant has contended that the report of the Local Commissioner established in no uncertain terms that the suit property was a gair mumkin johar and did not form part of the property comprised in khasra no.65/1 which was allegedly purchased by the plaintiff. He further contended that the report of the Local Commissioner was a positive piece of evidence in favour of the defendant because the R.S.A.No.1678 of 1984 -4- .... objection filed by the plaintiff against the same had been dismissed and that dismissal order was affirmed up to this Court in revision petition. He, thus, submitted that the findings recorded by the first appellate Court were erroneous and were liable to be set aside. On the other hand, learned counsel for the plaintiff has sought to defend the finding of ownership recorded in judgment and decree of the first appellate Court by pleading that the same is in conformity with the evidence on record. He further submitted that in so far as the question of possession is concerned, the plaintiff was in possession of the suit property and the finding of the first appellate Court to that extent deserves to be upset. I have heard the learned counsel for the parties and have perused the impugned judgment, as also the record. The finding of fact regarding possession has been recorded by the first appellate Court. Even though, there is a recital in the sale deed that the possession had been handed over to the plaintiff, but he has not been able to prove his possession over the suit property. Except for the oral evidence, there is no other material on record to prove that fact. In so far as the question of ownership is concerned, the statement of the defendant recorded in the proceedings under Sections 107/151 of the Cr.P.C., as also in the instant proceedings, are at variance with each other. At one stage, he pleaded that the suit property belongs to the Municipal Committee and in the same breath, he stated that the property belonged to him. As against it, the plaintiff produced cogent evidence in R.S.A.No.1678 of 1984 -5- .... the shape of sale deed which was also duly proved in accordance with law to establish his proprietary right over the suit property. The statements in the proceedings under Sections 107/151 of the Cr.P.C. were recorded on oath and the same can be considered to be a persuasive piece of evidence which has a high plausible content and such admission necessarily ought to be held against the defendant, more-so when, as observed earlier, his stand regarding ownership of the suit property was not consistent. In any eventuality, the appeal does not throw up any substantial question of law for determination by this Court. For the reasons stated above, the appeal as well as the cross objections are dismissed. March 9,2010 ( Mahesh Grover ) “SCM” Judge