RSA No.2673 of 1985 -1- 1.IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2673 of 1985 Date of decision 8.2.2011 Nathi Ram versus …Appellant Amar Nath & Others …Respondents CORAM : HON’BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Raj Mohan Singh Advocate for the appellant Mr.C.B.Goel,Advocate for the respondents JITENDRA CHAUHAN.J The appellant (hereinafter referred to as `the plaintiff'), filed a Civil Suit No.570 of 1994 before the Sub Judge Ist Class, Karnal restraining the respondents (hereinafter referred to as `the defendants') from interfering with his possession and enjoyment of the suit property. It is alleged that the plaintiff was in actual physical possession over the property as reflected in para 1 of the plaint. The property in question was covered by four walls of bricks and he placed therein one wooden khurli, fixed khuntas, fodder machine etc. It was further alleged that the said property is ancestral property and the defendants have got no right, title or interest over the suit property. The suit was contested by defendant No.1, alleging that the plaintiff had no locus standi to file and maintain the suit. It was also asserted that the plaintiff had no cause of action to file the RSA No.2673 of 1985 -2- suit. The following issues were framed by the trial court:- 1. Whether the plaintiff is in possession of the suit property as alleged? OPP 2. Whether the plaintiff has got no locus standi to file and maintain the present suit? 3. Whether the suit is not legally maintainable? OPD 4. Whether the plaintiff has got no cause of action to file the present suit? 5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 6. Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD 7. Whether the plaintiff is not entitled to the discretionary relief as alleged? OPD To prove its case, the plaintiff, PW1, examined Brij Bhushan, Draftsman, as PW2, Daya Chand, as PW3 and Surja as PW4. Beni Parshad, DW1 examined Mandan Gopal, Draftsman, DW2 and Gurnam Singh, DW3. While deciding issue No.1, the court below held that the plaintiff failed to establish his possession over the suit property as alleged by him. The witnesses examined by the plaintiff did not support him on this point. Daya Chand, PW3, has stated that the plaintiff was in possession of the suit property about 1 ½ years back. Similarly, Surja, PW4, also corroborated the version of Daya Chand, PW2 that the plaintiff was in possession only for the last about two years. The Ld. courts below noticed the contradictory RSA No.2673 of 1985 -3- version of the plaintiff, who claimed that chaff cutter and hand-pump were installed by him 20/25 years ago, and the statements of Daya Chand, PW3 and Surja, PW4 wherein they have deposed that the same were installed by the plaintiff-appellant about 1 ½-2 years ago. Further, the plaintiff failed to produce the receipts regarding purchase of hand-pump, chaff cutter and bricks. Surja, PW4 also stated that earlier Beni Parshad, DW1 was in possession of the suit property. The said version was also corroborated by Gurnam Singh, DW3. In such circumstances, the court below held that the plaintiff was not in possession of the plot in dispute and decided the issue against the plaintiff. As regards issue No.2 and 3, the court below decided these issues in favour of the defendants keeping in view the finding of issue No.1. Issues No. 4,5,6 and 7 were given up by the learned counsel for the defendants. Aggrieved against the said judgment of the trial court, the plaintiff preferred an appeal, which was also dismissed by the first appellate Court. Learned counsel for the appellant has argued that the property in dispute is situated in Abadi and the appellant is in possession of the suit land since time immemorial. He has further argued that the possession of the appellant is proved on record. There is strong presumption of ownership in favour of the appellant particularly when the articles of the appellant were found at the disputed site during the visit of the Local Commissioner. He has further stated that the land of Beni Parsad is at a distance of 100/125 yards from the site in dispute. The respondent did not own any land in the vicinity of the site in question. Learned counsel has further submitted that the defence has tried to prove the title on the basis of documents Exhibits DW1/A and DW1/B. RSA No.2673 of 1985 -4- These documents i.e. Field Book and Shajra prepared by the Sarpanch have not been produced in the Court and hence the same cannot be considered to be of any evidentiary value. He submitted that the learned trial court has not considered the statement of Gurnam Singh, DW3 who in vocal terms has stated that the appellant Nathi Ram had taken possession of the property in dispute. On the other hand, learned counsel for the respondent has submitted that the report dated 20.9.1983 of the Local Commissioner cannot be considered as he did not inform the respondent regarding his proposed visit for the purpose of preparing the site plan on the directions of the Court and that the site plan has been prepared at the instance of the appellant. Learned counsel has further submitted that the appellant has filed the suit in the year 1982 wherein he has claimed that he is in possession for the last about 25 years. Learned counsel has referred to the statement of PW2-Draftsman Brij Bhusan who has admitted that he has not visited the spot. Learned counsel has also referred to the statement of PW4 Surja, which was recorded on 8.2.1985 that he has seen the land in dispute, which was in possession of the appellant. He has further referred to the cross-examination of this witness wherein he has admitted that there existed a Kacha Shop on the disputed land which had collapsed during the rainy season. Learned counsel has further stated that the appellant has to stand on his own legs. He has lastly submitted that the possession of Beni Parsad is admitted in view of the statements of the plaintiff witnesses. I have heard the learned counsel for the parties and perused the record. RSA No.2673 of 1985 -5- The point for determination in this appeal is as to whether the courts below have mis-read the documentary evidence produced on record? The appellant has asserted his possession only on the ground that his articles like mangers, chaff cutting machine and hand pump were found at the site in dispute alongwith an almirah which was fitted in the wall. Further, the case of the plaintiff is that Beni Parshad does not own any land in the immediate proximity of the disputed site. Admittedly during the visit of the Local Commissioner appointed by the Court, the articles named by the appellant were noticed at the spot but there is over-whelming evidence on record which falsifies the assertions of the appellant in the suit that he is in possession of the disputed plot for the last 20-25 years. However, from the statement of Surja PW4 it is proved that the possession is sought to be proved on the basis of the site plan prepared by the Draftsman Brij Bhusan PW-2. This witness has admitted that he did not visit the spot. Daya Nand PW-3, has stated that chaff cutting machine and hand pump were installed one and half years ago and there does not exist any house on the disputed site. He also stated that the proceedings under section 107/151 Cr.P.C. were carried out. As per police report Exh.DW/1, it is noticed that on enquiry, all the persons present at the site stated that the plot was owned by Lala Beni Parshad. The appellant has not been able to prove his precise stand that he is in possession of the disputed site for the last 25 years. From the perusal of the record, it is made out that the Local Commissioner did not inform the respondent. In view of this admitted position, the report of the Local Commissioner is of no consequence. If certain articles e.g. chaff cutting machine, mangers, hand pump claimed to be of the appellant, were found at RSA No.2673 of 1985 -6- the spot, the same does not establish the possession of the appellant. From the statement of plaintiff witnesses, it is established that the appellant came in possession of the suit land about one and a half years prior to the filing of the suit for declaration. All the evidence led by the appellant is contrary to his assertions on this factual aspect of the matter. There is no concrete evidence that he was in possession of the land, whereas the prior possession of the respondent Beni Parshad is proved on the basis of the statements of the plaintiff witnesses, which is fortified by the Police Report. Both the courts below have rightly appreciated the evidence produced on record. No substantial question of law proposed by the learned counsel for the appellant arises for consideration in this appeal. Therefore, no interference is called for in the findings of fact arrived at by both the courts below. Accordingly, I do not find any merit in the present appeal and the same is dismissed. The judgments and decree passed by the courts below are maintained. 8.2.2011 (JITENDRA CHAUHAN) mk/ms JUDGE Note: Whether to be referred to the Reporter? Yes / No