R.S.A. No. 2396 of 1983 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2396 of 1983 (O&M) Date of Decision : 4.2.2010 Nawal Kishore (dead) through L.Rs. .......... Appellant Versus Nanak Chand & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Adarsh Jain, Advocate for the appellant. Mr. J.L. Malhotra, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 58-C of 1984 This Civil Miscellaneous under Order 41 Rule 27 of the Code of Civil Procedure, is allowed being not opposed. The additional evidence taken on record. R.S.A. No. 2396 of 1983 This regular second appeal is directed against the judgment and decree passed by the learned Courts below vide which suit for injunction filed by the plaintiff / appellant stands dismissed. The plaintiff filed a suit on the pleading that he was owner in possession of a plot marked by letters ABCD, shown blue in the site plan attached with the plaint, with the boundaries as under :- East : Private gali of plaintiff. R.S.A. No. 2396 of 1983 2 West : Plot of Chander Bhan, North : Gali Shamlat plaintiff, Chander Bhan and Nanak Chand, South : Rasta Am. It was the case of the plaintiff, that Gali Shamlat of the plaintiff Chander Bhan and the defendants was towards the north of the plot of the plaintiff, shown red in colour. The water of the plots of the plaintiff, Chander Bhan, and of the defendants passed through said gali for the last 40 years. The defendant / respondent being strong headed persons and taking advantage of four holidays in the Civil Courts, in the month of October, 1978, made permanent constructions marked by letters EFGH in the Shamlat Gali and closed the street by pucca wall 001, and also opened three Janglas and ventilators in the aforesaid Shamlat Gali without any right. The encroachment resulted in injury to the plaintiff, as the gali got narrowed and obstructed the flow of water. The plaintiff filed a suit for permanent injunction restraining defendant / respondents from encroaching upon or constructing, or any portion of the gali shown in red and also for a decree of mandatory injunction, directing the defendants to remove the wall 001 and the construction marked EFGH. The suit was contested by the defendants. In the written statement defendants took up a preliminary objection that site plan produced by the plaintiff / appellant was wrong. The suit was bad for non-joinder of necessary parties. The suit was not within time and not valued properly for the purposes of Court fee and jurisdiction. The case of the defendants was that the plaintiff along with his R.S.A. No. 2396 of 1983 3 brothers was owner of the property marked by letters PQRS, and the site plan submitted by the plaintiff was wrong as the gali shown red was exclusively owned by the defendant, which was a part of their house. No water from the moris, of the house or any other persons passed through it. It was also pleaded that plot ABCD is the property of defendant No.1. Previously there was a house in this plot which was rented out by the defendants. Several years ago, the house over this plot collapsed and the malba was still lying on the spot. In the replication, the averments made in the plaint were reiterated and those in the written statement were denied. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiff is owner in possession of the plot in dispute ?OPP 2. Whether there is a street jointly owned by the plaintiff, as shown with red shade in the site plan attached with the plaint?OPP 3. Whether the defendants have made construction on the said street as alleged in para 3rd of the plaint?OPP 4. Whether the suit is barred by limitation?OPD 5. Whether the suit is liable to be dismissed for the reasons stated in para no.1 and 2 of the plaint? 6. Whether the suit is not maintainable in the present form?OPD 7. Whether the suit is bade for non-joinder of necessary parties?OPD 8. Whether the suit is not properly valued for R.S.A. No. 2396 of 1983 4 the purpose of court fee and jurisdiction?OPD 9. Relief.” On appreciation of evidence, the learned trial Court came to the conclusion that the plaintiff / appellant miserably failed to bring any cogent and convincing evidence to prove their title to the property. It was held that the plaintiff was not owner in possession of the plot ABCD. The learned trial Court came to this conclusion, in view of the fact that the plaintiff / appellant had examined the scribe of sale deed Ex.P- 1. Whereas, Sugan Chand, proved site plan Ex. P10. The other witnesses examined by the plaintiff / appellant, Jagdish Chand, PW8, did not have much to say about the ownership of the house. Whereas Sukhbir,PW9 deposed that the plaintiff purchased the plot from one Bhawani. The learned trial Court held, that as plaintiff / appellant failed to examine his vendor Bhawani Ram by giving him up as unnecessary, adverse inference was to be drawn against the plaintiff / appellant for not examining Bhawani Ram, being best evidence. The learned trial Court also took note of the fact that the sale deed Ex. P-1 showed that the plaintiff had purchased a plot measuring 36' x 10'9”, whereas plot in dispute measured differently as the other documents Ex. P-3, Ex. P-4, Ex. P-6 and Ex. P-7, showed the plot No. 49 to be measuring 24'x20'. The boundaries of the plot were also not given in the Naksha Sizra, on which strong reliance was placed. The plea of the learned counsel for the plaintiff / appellant that only half of this property was sold also could not tally with the measurement of plot i.e. 36' x 10'9”. Ex. P-4, copy of the nakal register, on R.S.A. No. 2396 of 1983 5 which reliance was placed by the plaintiff, showed that the plot No. 49 was owned by Imrat Ali son of Mansaf Ali and was allotted to Chander Bhan and Bhawani Ram. The plaintiff failed to connect Mansab Ali with Kifayat Ali by producing on record the pedigree tables. Ex. P-6, P-7 and Ex. P-8 relied upon by the plaintiff, were agreements executed in the year 1914 between Mansab Ali, Mehmud and Makhan Lal, wherein it was recited that the gali is to be owned by Makhan Lal. The learned trial Court held, that the recital by 3rd party relating to the ownership was not admissible in evidence. The defendants being not party to the agreement, were not bound by it. The learned trial Court thereafter proceeded to record the finding that the person claiming title was required to prove, that the vendor had the title, to pass on to the party claiming ownership. The learned trial Court held, that plaintiff failed to get the property connected / located to claim ownership. On account of non-examination of Bhawani Ram, the learned trial Court did not accept the sale in favour of the plaintiff / appellant, as claimed. The learned trial Court also took note of Ex. D-2 i.e. copy of the Nakal Register, showing that plot No. 49 was allotted to Chander Bhan and Jattu Ram and not to Bhawani Ram. On issue No.2, the learned trial Court held, that the plaintiff / appellant failed to show that the street in dispute was jointly owned by the parties and Chander Bhan. The learned trial Court observed that as per the site plan produced by the plaintiff / appellant, Ex. P-2 & P-10 no outlets were shown towards the Gali. Local Commissioner who visited the spot and submitted report Ex. PX with site plan Ex. PY. As per the report of the R.S.A. No. 2396 of 1983 6 Local Commissioner, flow of water was also towards Western side. The site plan Ex.P-2, therefore, was held to be not depicting the correct position. The reason for this conclusion was, that as per the site plan the gali was shown to meet another gali towards the western side. An amended site plan Ex.P10 was also produced, which showed house of Chander Bhan towards western side of the gali. As already mentioned, site plan did not show any outlets showing the discharge of water in the gali. The plea of the plaintiff / appellant, that his case stood proved by Ex.P-8 i.e. the agreement between Mehmood Ali, Masoof Ali, Mohan Lal and Makhan Singh, the grand father of the plaintiff, showing that the gali would be owned by Makhan Lal, was in fact contrary to the pleadings of the plaintiff. It was pleaded case that gali was joint of plaintiff, Chander Bhan and the defendant. The sale deed Ex. PW5/1qua the house of the defendant showed that on the southern side there was rasta and shop of Pirji Umed Ali. The plaintiff failed to prove, that gali was rasta-am. The sale deed Ex.PW5/1 could be of no help to the plaintiff. The finding of the learned trial Court was, that the plaintiff failed to show that gali was joint between the parties and Chander Bhan. Chander Bhan was also not examined. Issue No.2 was also decided against the plaintiff / appellant. Issue No.3, was not answered in view of the findings recorded on issue No.2. Issue No.4, was decided against the defendants. As defendant / respondents failed to show as to how the suit was barred by limitation. On issue No.5, arguments were not addressed, so the issue was R.S.A. No. 2396 of 1983 7 taken to be not pressed and no finding was recorded on this issue also. On issue No.6, the learned trial Court held that as the plaintiff / appellant was not in possession of the property in suit, therefore, the suit for injunction was not maintainable in the present form. Issue No.6 was decided against the plaintiff / appellant. Issues No. 7 & 8 were decided against the defendants being not pressed. The suit was dismissed. In appeal, the findings recorded by the learned trial Court were affirmed and appeal dismissed. The learned counsel for the appellant contends that this appeal raises the following substantial questions of law :- 1. Whether the learned Courts below misread and misconstrued the evidence on record and as such the judgment and decree is illegal and unsustainable in law? 2. Whether the onus to prove that street in dispute belongs exclusively to the defendant, was not required to be discharged and proved by the defendant? In support of the substantial question of law, the learned counsel for the appellant contended, that the learned Courts below have misread and misconstrued the evidence. The plaintiff / appellant duly proved on record, that he was owner of plot ABCD, as proved by sale deed executed in his favour. The lacuna pointed out stood proved by way of additional evidence, brought on record in this Court. It was contended that the sale deed executed in favour of plaintiff / appellant as that of defendant / respondent showed that there was Gali on the northern side of plot of R.S.A. No. 2396 of 1983 8 plaintiff / appellant which was followed by house of defendant. The findings of the learned Courts below, therefore, are perverse on the face of record. This contention of the learned counsel for the appellant is misconceived, even if for the sake of arguments plot ABCD is taken to be of plaintiff , then the suit could not be decreed, as plaintiff / appellant had failed to prove that Gali in dispute was joint between the parties. The learned Courts below have recorded a concurrent finding of fact in view of the report by the Local Commissioner. The learned counsel for the appellant contends that the learned Courts below, non-suited the appellant by recording a finding that the appellant had failed to prove his ownership qua plot ABCD which could not be a ground to non-suit the plaintiff / appellant, as dispute was with regard to the gali. The learned counsel for the appellant contends that by way of additional evidence the documents have been placed on record, showing plot No. 49 was sold to the vendor of the plaintiff and his brother Chander Bhan. The sale deed of Bhawani Ram in his favour, therefore, proved the ownership of plaintiff / appellant over the plot ABCD. It was, thus, contended that in view of additional evidence brought on record, the first substantial question of law be answered in favour of the appellant. On the second substantial question of law, the learned counsel for the appellant contended that it was a case of the defendants, that street in dispute is exclusively belonged to him, therefore, onus of proof should have been placed on the defendants and not on the plaintiff. The learned Courts below, committed an error by placing onus R.S.A. No. 2396 of 1983 9 of proof qua ownership of a gali on plaintiff / appellant. The judgment and decree, therefore, deserved to be set aside. The learned counsel for the respondent contended, that the concurrent finding of fact recorded by the learned Courts below, is not open to challenge before this Court. The learned Courts below on appreciation of evidence recorded a concurrent finding of fact that the plaintiff / appellant failed to prove his ownership. The documents now placed on record by way of additional evidence also do not advance the case of the plaintiff / appellant. The documents do not prove, that plot No. 49, was sold in favour of Bhawani Ram, the vendor of the appellant. The learned counsel for the respondents also contended that the appellant was non-suited for non-production of evidence with regard to the ownership. An adverse inference was drawn against appellant, as he had failed to examine Bhawani Ram his vendor i.e. the best evidence, who could through light on this fact, as to how area claimed to be sold was different from the plot size at the spot. The lacuna noticed by the learned Courts below, therefore, is not filled even by way of additional evidence. No ground is made out to interfere with the findings recorded, nor it be said that the judgment and decree passed by the learned Courts below is outcome of misreading of evidence. The learned counsel for the respondent referred to issue No.2 framed by the learned trial Court, which reads as under:- “2. Whether there is a street jointly owned by the plaintiff, as shown with red shade in the site plan attached with the plaint?OPP” The contention of the learned counsel for the respondent was R.S.A. No. 2396 of 1983 10 that this issue was framed in view of the averments made by the plaintiff in his plaint, on the basis of site plan attached. Therefore, the onus to prove was rightly placed . It cannot, therefore, be said that the onus was wrongly placed. It was also the contention of the learned counsel for the respondent that it is well settled law that the plaintiff is to stand on his own legs, and once the plaintiff / appellant failed to prove the pleaded case, he could not take advantage of the fact that defendant had also failed to prove that the street was belonging to him exclusively. On consideration, I find no force in the contentions raised by the learned counsel for the appellant. It would be seen that the learned Courts below on appreciation of evidence have recorded a concurrent finding of fact, that the plaintiff / appellant failed to prove, that there was a common gali between the parties, on the northern side of the plot of the plaintiff / appellant, which was encroached. The learned Courts below based their findings on the basis of evidence and the report of the Local Commissioner, which proved beyond doubt that the street was not used by the plaintiff / appellant. It is also to be noticed that in spite of positive stand, taken by the plaintiff / appellant that the street was joint and was in use as such for the last 40 years for discharge of water. The plaintiff / appellant failed to lead any evidence in support. The evidence led, and disbelieved was with regard to some other street and not the street in dispute. The contention of the learned counsel for the appellant cannot be accepted, that the judgment and decree passed by the learned Courts below is outcome of misreading of evidence. The first substantial question of law is answered against the R.S.A. No. 2396 of 1983 11 appellant. The second substantial question of law also deserves to be answered against the appellant as the onus to prove the issue was rightly placed on the plaintiff / appellant, as it was his assertion that the gali in dispute was joint property of the plaintiff and the defendant. The onus cannot be placed on the defendant / respondents to prove the negative. No other point was pressed. The concurrent finding of fact recorded by the learned Courts below are affirmed and this regular second appeal is dismissed but with no order as to costs. 4.2.2010 ( VINOD K. SHARMA ) 'sp' JUDGE