RSA No.4531 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4531 of 2010 (O & M) Date of Decision: 17.12.2010. Roshan Lal and others .....Appellants Versus Balraj and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.Jagdish Manchanda, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.13502-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 105 days in refiling the appeal is condoned. CM No.13503-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 5 days in filing the appeal is condoned. CM Nos.13504-05-C of 2010 Allowed as prayed for. CM No.13506-C of 2010 The application is allowed and Annexures P-1 to P-5 are taken on record, subject to all just exceptions. Main Appeal and CM No.13508-C of 2010 Palintiffs-Roshan Lal etc., who are sons of Shiv Dayal have filed the instant second appeal, having failed in both the Courts RSA No.4531 of 2010 (O & M) -2- below. Plaintiffs alleged that their father Shiv Dayal and Ram Chander had jointly purchased one plot/Bara depicted by letters 'ABCDEF' in site plan Ex.PW-5/A, vide registered sale deed dated 19.07.1958. Ram Chander constructed house in half portion of the plot whereas remaining half portion remained in possession of Shiv Dayal. On his death, plaintiffs came in possession of the said portion. However, out of it, defendants have illegally occupied portion depicted in red colour in the site plan whereas the portion depicted in blue colour in the site plan is still in possession of the plaintiffs. Defendants have no right, title or interest in the suit portion depicted in red colour in the site plan. Accordingly, plaintiffs sought declaration that they are absolute owners of the plot/Bara in dispute depicted in red colour in the site plan. The plaintiffs also sought relief of possession of the said disputed portion. Defendants controverted the plaint allegations. Defendant Nos.1 and 2 alleged that they have no concern with the disputed Bara. Defendant Nos.3 to 8 are the main contestants. They alleged that plaintiffs are neither owners nor in possession of the suit property. The plot described by the plaintiffs does not exist at the spot. It was, however, admitted that Ram Chander has constructed his house in western side and the remaining portion is in possession of Shiv Dayal and his sons i.e plaintiffs. The plaintiffs have constructed boundary wall on the eastern side of their plot. The disputed portion depicted in red colour is ancestral property of the defendants and they are in possession thereof. Various other pleas RSA No.4531 of 2010 (O & M) -3- were also raised. Learned Civil Judge (Junior Division), Karnal vide judgment and decree dated 23.02.2006 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Fast Track Court, Karnal vide judgment and decree dated 05.02.2010. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that plaintiffs/appellants are proved to be owners of the suit property in view of sale deed dated 19.07.1958 vide which plaintiffs' father and Ram Chander purchased the same. It was also contended that defendants are not proved to be owners of the suit property. I have carefully considered the aforesaid contentions, but find no merit therein. Suit property is not proved to have been purchased by Shiv Dayal and Ram Chander vide sale deed dated 19.07.1958. The said sale deed does not pertain to the suit property. Dimensions and boundaries given in the said sale deed are different from the dimensions and boundaries of the suit plot pleaded by the plaintiffs. In addition to it, plaintiff No.1 Roshan Lal while appearing in the witness box as PW-7 demolished the whole case of the plaintiffs and admitted that suit property is not part of the Bara which was purchased by their father and Ram Chander. Roshan Lal stated that disputed plot is adjacent to the Bara which had been purchased by palintiffs' father and Ram Chander vide sale deed dated 19.07.1958. This is thus categorical admission of plaintiff No.1 RSA No.4531 of 2010 (O & M) -4- that disputed plot is not part of the Bara which had been purchased by plaintiffs' father Shiv Dayal and Ram Chander. On the contrary, Roshan Lal PW-7 has come up with a new version in the witness box. He stated that vendor Chhaju Kumhar had denoted the disputed plot to plaintiffs' father when Chhaju Kumhar left the village. It is thus manifest that the disputed plot is not part of the Bara which had been purchased by the plaintiffs' father and Ram Chander. Statement of Roshan Lal that Chhaju Kumhar donated the disputed plot to plaintiffs' father is completely beyond pleadings. No such plea has been taken in the plaint. Moreover, there could be no oral gift deed of immoveable property. Admittedly, there is no registered gift deed by Chhaju Kumhar in favour of plaintiffs' father. It is thus manifest from plaintiffs' own admissions that plaintiffs are not owners of the suit property. Plaintiffs have relied on copy of sale deed dated 19.07.1958 Mark 'A' and copy of attached site plan Mark 'B'. However, these documents have not been proved. These documents were sought to be read in evidence being 30 years old, but being copies and not original documents, benefit of Section 90 of the Evidence Act available to 30 years old documents is not available to the copies. There is also no evidence to depict that plaintiffs' predecessor Chhaju Kumhar, who allegedly donated the suit plot to plaintiffs' father, was owner of the disputed plot. It may also be added that plaintiffs have already raised wall of their plot. The disputed portion lies outside the boundary wall of the plaintiffs. If the disputed plot had been part of the plaintiffs' property, they would not have left it outside the boundary wall constructed by them. Level of RSA No.4531 of 2010 (O & M) -5- the disputed plot is also lower by 2 ½ feet than the level of the plot which is in possession of the plaintiffs as admitted by Roshan Lal PW-7. These circumstances also depict that plaintiffs are not owners of the disputed plot. Both the Courts below have analyzed the evidence in detail and have come to concurrent finding against the plaintiffs. The said finding is duly supported by cogent reasons recorded by the Courts below and is not shown to be perverse or illegal so as to warrant interference in second appeal. The plaintiffs have miserably failed to prove that they are owners of the suit property. Consequently, they are not entitled to seek possession thereof, even if it be assumed for the sake of argument only that defendants have failed to prove their ownership thereon. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine. 17.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE