RSA No.3595 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3595 of 2009 (O&M) Date of decision: 13.7.2010 Satyavir ......Appellant(s) Versus Ratti Ram and another ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Arun Yadav, Advocate for the appellant. Rakesh Kumar Garg, J. This appeal has been preferred by Satyavir-defendant No.2 challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent No.1 for permanent injunction restraining the appellant as well as respondent No.2-Maman from interfering in the peaceful possession of the suit property, was decreed. Respondent No.1 filed the present suit submitting that the suit property was his ancestral property and he was in his exclusive possession, wherein he had installed a tin shed and was using the same for tethering animals and for other domestic purposes and the defendants had no concern with the same; however they were threatening to encroach upon the suit property which necessitated the filing of the present suit. The appellant as well as respondent No.2 contested the suit and filed their written statement. Respondent No.2 in his written statement pleaded that the suit property was his exclusive property wherein he had constructed permanent house and he was in possession of the same since the time of his forefathers and plaintiff-respondent No.1 had no concern RSA No.3595 of 2009 (O&M) 2 with the suit land. It was further pleaded that the suit property was sold by him to the appellant vide sale deed dated 24.7.2000 and now the appellant is in possession of the suit property as owner and he has raised construction of his house and is residing in the suit property. The appellant also pleaded that the suit property was purchased by him from respondent No.2 vide sale deed dated 24.7.2000 for a sum of Rs.6500/- and since then he is in possession of the suit property and has raised permanent construction of his house over the same. It was pleaded that the suit be dismissed. On the pleadings of the parties, the following issues were framed: “1. Whether plaintiff is owner in possession of the suit property and is entitled to injunction as prayed for? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff is estopped from filing the suit due to his act and conduct? OPD 4. Whether the plaintiff has no locus standi to file the suit?OPD 5. Whether the defendant is entitled to special cost under Section 35A CPC? OPD 6. Relief.” After hearing learned counsel for both the parties, issue No.1 was decided by the trial Court in favour of plaintiff-respondent No.1. Issues No.2 to 4 were also decided in favour of the plaintiff. Issue No.5 was decided against the defendants being not pressed. The suit of the plaintiff- respondent was decreed vide judgment and decree dated 12.5.2008 passed by the Civil Judge (Jr. Division), Mohindergarh and the defendants were restrained from interfering in the possession of the plaintiff over the RSA No.3595 of 2009 (O&M) 3 suit property. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, only the appellant (defendant No.2) filed an appeal before the Lower Appellate Court. While dismissing the appeal, the Lower Appellate Court held that respondent No.2 failed to prove his ownership and possession qua the suit property and the appellant had no right. The Lower Appellate Court also recorded a finding of fact that from the evidence on file, possession of the plaintiff-respondent on the suit property was proved. Still not satisfied, defendant No.2; i.e the appellant, has filed the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the Courts below have erred at law while not appreciating the facts that the plaintiff-respondent failed to prove his ownership on the suit property and by mere oral assertions it cannot be said that the plaintiff was owner in possession of the suit property and it is settled law that the plaintiff has to stand on his own legs and cannot take benefit of the weakness of the defendants' witnesses. It was further argued that the statement of plaintiff who deposed that he does not know as to what is written in the affidavit Ex.PW-3/A and in examination-in-chief, had shown his ignorance of filing of the suit, but the Courts below have erred while decreeing the suit. On the basis of the argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the learned lower courts below have misappreciated the evidence available on record/ (ii) Whether the plaintiff should stand on its own legs RSA No.3595 of 2009 (O&M) 4 to prove his case? (iii) Whether the suit of the plaintiff can be decreed in these circumstances when he himself does not know about the statement given by him by way of affidavit and denying the filing of any suit against the defendants?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. It is not in dispute that the suit property situates within the Lal Dora of the village meaning thereby that there was no record of the aforesaid property. Thus, the assertions of the parties can be decided only on the basis of oral evidence available on record. On behalf of the plaintiff- respondent, PW-1 was examined who gave dimensions and location of the suit property. PW-2 Rattan Singh proved the site plan Ex.PW-2/A who stated that he prepared the site plan after visiting the spot. Ratti Ram- plaintiff himself stepped into witness box as PW-3 and showed his ignorance that defendant No.2 had purchased the disputed property during the pendency of the suit. However, he stated that he was concerned with the ancestral property with regard to which he filed the present suit. On the other hand, defendant-respondent No.2-Maman appeared as DW-1 and stated that he was having his houses in village Buchawas as well as village Budin and was having his ration card in village Budin. No voter list indicating that respondent Maman was living in the village where property situates has been placed on record. Thus, lack of ration card and voter list of Maman indicate one point that he was not living in the village where property in dispute is situated whereas in the written statement it is stated that he raised the construction of permanent house over the disputed property. The aforesaid respondent also failed to give dimensions and boundaries of the property in question which also leads to the conclusion RSA No.3595 of 2009 (O&M) 5 that he was not in possession of the disputed property for a long period and was not owner of the same. There is no dispute with the argument raised by the learned counsel for the appellant that the plaintiff-respondent has to stand on his own legs and he cannot take benefit from the weakness of the witnesses of the appellant. However, as noticed above, the Courts below found that the plaintiff-respondent was living in the village where disputed property is situated and the testimony of other witnesses corroborates his stand whereas the stand taken by the appellant is not corroborated by the statements of the witnesses produced on his behalf. Thus, the Courts below on appreciation of evidence and after weighing the statements of the witnesses have reached to a conclusion that the appellant was not in continuous possession of the property in dispute. It may also be noticed that the appellant had set up his title on the basis of registered sale deed, however, his vendor i.e. respondent No.2 himself could not establish his title with regard to the disputed property nor he could establish his possession and therefore, no fault can be found with the judgments and decrees of the Courts below and it cannot be held that the same suffers from perversity. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. July 13, 2010 (RAKESH KUMAR GARG) ps JUDGE