RSA No.3113 of 2008 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3113 of 2008 Date of decision: September 05, 2011. Nawal Singh ... Appellant(s) v. Sumer & Another ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri A.P. Bhandari, Advocate, for the appellant(s). Shri J.S. Hooda, Advocate, for the respondents. Kanwaljit Singh Ahluwalia , J. The suit filed by the appellant-plaintiff for issuance of permanent injunction along with a prayer that mandatory injunction be granted and the respondents be directed to demolish the wall raised over the suit property, was decreed by the trial court. Aggrieved against the same, defendants to the suit filed an appeal. The appellate court affirmed most of the findings given by the trial court, however, the mandatory injunction granted in favour of the plaintiff that the defendants should demolish the wall raised by them, was modified and it was ordered that since the land is still joint and has not been partitioned between the co-sharers, the appellant should file a suit for partition. Aggrieved against this finding, the plaintiff has filed the present appeal. RSA No.3113 of 2008 -: 2 :- Briefly stated, in the suit instituted, the plaintiff pleaded that he is absolute owner and in possession of plot measuring 50x38', i.e., 7th of 90th share, i.e., 211 square yards (7 marls) forming part of land bearing Khewat No.210, Khatauni No.237, rect. No.226, Killa No.5/1/2 (4-10) situated in the revenue estate of village Hodal Patti Tihab, Tehsil Hodal, District Faridabad. According to the plaintiff, this plot was purchased vide registered sale deed No.1673 dated 16.12.1987 . It was further pleaded in that plaint that after purchase of the plot, the plaintiff had raised construction upto DPC level (plinth level). On the western side, it was stated that the defendants were having a plot and defendants have raised a construction of the wall which passes through the plot of the plaintiff. Therefore, prayer was made that decree for permanent injunction be granted restraining the defendants from interfering in the peaceful possession of the plaintiff over the suit property. Furthermore, mandatory injunction was sought that the defendants be ordered to demolish the wall FG illegally raised over the plaintiff's property. The defendants filed their written statement in which they stated that the plaintiff is not the absolute owner in possession of the plot, as alleged. The plaintiff and the defendants are joint owners/co-sharers and they are in the joint possession of the suit property. After conclusion of the pleadings, trial court had drawn the following issues:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. Whether the plaintiff is entitled for decree for permanent injunction, as prayed for? OPP RSA No.3113 of 2008 -: 3 :- 3. Whether the present suit is not maintainable? OPD 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Whether the plaintiff has no cause of action to file the present suit? OPD 6. Whether the defendants are entitled to get special costs under Section 35-A CPC? OPD 7. Relief. The trial court, after appreciating the evidence, gave following findings:- “... In my view, the defendants have constructed the wall over portion of the plot of the plaintiff and the plaintiff is very much having possession of the suit property, therefore, the plaintiff has proved his case beyond reasonable doubt. The case law cited by the learned counsel for the plaintiff are applicable to the facts and circumstances of the present case, therefore, they are relied upon.” For returning the above stated finding, the trial court relied upon the sale deed Ex.P2, local commissioner's report and oral and documentary evidence adduced by the plaintiff. The trial court held that from the above said evidence it is proved that the plaintiff is in possession of the suit property and the possession was given by defendant No.2 and thereafter the defendants have raised wall over the portion of the plaintiff. Testimony of PW3 Devinder Singh, Advocate, who was appointed as local commissioner was relied upon to hold that the defendants have raised wall over the property of the plaintiff. Admission made by DW2 Dewan and DW3 Sumer RSA No.3113 of 2008 -: 4 :- Singh and the fact that the sale deed was executed and possession delivered, was also taken into consideration. Aggrieved against the judgment of the trial court, the respondent-defendants preferred an appeal in the lower appellate court. The lower appellate court noticed the testimony of PW1 Ved Parkash wherein he stated that the plaintiff had purchased the plot measuring 50x38', i.e., 7 marlas from Ram Sarup for a sale consideration of Rs,10,500/- vide registered sale deed and immediately thereafter he had filled the foundation upto DPC level. Ved Parkash also gave description of the adjoining plots. PW2 Kapur Singh proved copy of jamabandi Ex.P1. PW3 Devinder Singh, Advocate, who was appointed as local commissioner, proved issuance of notice Ex.DW3/1 to the parties, preparation of memo and inspection of the plot. He also proved report Ex.PW3/3 along with site plan attached with the report as PW3/4. PW4 Satya Parkash Mittal, Draftsman proved site plan Ex.P1/A. Plaintiff himself appeared as PW6 and proved sale deed Ex.P2, jamabandi Ex.P3 and P-4, Aksh-shizra Ex.P5 and also placed photographs of the site as Mark A. PW5 Totta Ram corroborated the testimony of PW6 Nawal Singh. DW1 Yadveer admitted that they had constructed a boundary wall upto 9 feet height. He also admitted that the plaintiff had also raised construction on his plot upto DPC level. DW2 Dewan corroborated the testimony of DW1 Yadveer. DW3 Sumer Singh reiterated as to what was stated in the defence and placed on record photographs Mark A. The lower appellate court held that neither the measurements of the boundary, nor the names of the persons who hold adjoining plots have been given in the sale deed. The court further held that the testimony of PW4 Satya Parkash RSA No.3113 of 2008 -: 5 :- Mittal cannot be relied upon as he stated that the demarcation of the plot was given to him by the plaintiff. The court further held that the local commissioner had no personal knowledge as measurements of the boundaries of the disputed plot were disclosed by the plaintiff. While holding so, the appellate court conveniently ignored a categoric finding given by the trial court that despite service of the notice upon the defendants by the local commissioner, the defendants had refused to sign the memo of presence. They had not cooperated with the local commissioner, therefore, adverse inference was drawn against the defendants. Furthermore, in the plaint, by way of amendment, following para was introduced:- “3-A. That the plaintiff's property A B C D consist of boundary walls and one northern wall is common wall with Raj Rani and the defendants have no right to encroach upon the plaintiff's property and dispossess him by encroaching and by illegally raising any construction of the wall EFG over plaintiff's property and plaintiff has got every right to get it demolished by way of mandatory injunction order and to get the possession of the disputed property in its original position.” It was stated in the prayer clause that the wall FG illegally raised over the plaintiff's property be ordered to be demolished. Both the courts below have held the appellant-plaintiff to be in possession of the suit property. Once there is no dispute regarding possession of the plaintiff over the suit property, then the trial court rightly held that wall over the suit property constructed by the defendants is to be removed. The lower appellate court also held as under:- “20. ... As far as the prayer of the plaintiff for an injunctive RSA No.3113 of 2008 -: 6 :- order to restrain the defendants permanently from interfering in his possession is concerned, in my considered opinion, when it is established that the plaintiff is owner in possession of the disputed plot which he had purchased vide registered sale deed Ex.P2/Ex.P2/A, he is entitled to the said relief. ...” Having held above, the court held that there is no evidence that any encroachment has been made on the plot of the plaintiff by constructing a wall. For returning the above said finding, the court held as under:- “Apparently the statement of the plaintiff is contradictory in itself. While in the affidavit he stated that defendant had encroached on his plot by constructing a wall, in his cross examination he stated that they had only attempted to encroach on his land because of which he had to file the present suit. ...” Thus, in view of the difference in reasoning propounded by the trial court and the lower appellate court, the following substantial question of law arises for consideration of this Court:- “Whether the lower appellate court has misread the evidence to reverse the well reasoned finding of the trial court that the defendants have constructed the wall over portion of the plot of the plaintiff, which they are liable to demolish?” This Court, vide order dated 10.11.2010 had requisitioned the records of the trial court. With the assistance of Counsel for the parties, I have seen affidavit of the plaintiff who has appeared as PW6 which has been exhibited as PW6/A. Shri Hooda, Counsel for the respondents, has read the cross examination of the plaintiff. He has read cross examination of Nawal Singh when he was recalled for this purpose on 30.11.2004. The following RSA No.3113 of 2008 -: 7 :- portion of cross examination of this witness when translated into English reads as under, “The day I had filed the suit, defendant had made an attempt to include some portion of mine into his”. The factum of raising of wall was introduced in the amended plaint filed on 29.1.2002 when prayer for mandatory injunction was introduced. Thus, according to Shri Bhandari, wall was constructed and encroachment was made after filing of the suit and grant of ad-interim injunction. Suffice it to say that the trial court has only held that the plaintiff holds the possession over the joint property. The trial court further held that the wall should be removed. For holding so, reliance was rightly placed upon the report of the local commissioner Ex.PW3/3 and the site plan attached thereto Ex.PW3/4. The local commissioner had specifically stated that in the site plan drawn by him, the plot of the plaintiff consists of ABCD and the portion E to F of the wall is being constructed in the plot. Wall has been shown as E to F. It has come in the evidence that the defendants have sold various plots. The lower appellate court has also held as under:- “11. As claimed by the plaintiff the measurement of his plot are 50 ft. x 38 ft i.e. 211 square yards (7 marls). In his statement DW3 Sumer Singh expressed ignorance regarding the said measurements of the disputed plot but he admitted that the plaintiff had constructed a boundary wall around his plot. He also admitted that the disputed plot adjoins the passage on the eastern side as shown in the site plan Ex.P1/A. It is further evident from his statement as well as statement of his witnesses DW1 Yadvir and DW2 Diwan that Ram Saroop had bifurcated his land into some plots and had sold the same to the different RSA No.3113 of 2008 -: 8 :- persons. It has also come in his statement that some purchasers have already taken possession of their plots among whom one is the plaintiff. So even the evidence of the defendants is enough to prove possession of the plaintiff on the plot purchased by him.” Both the courts below have given following concurrent findings of fact, that (a) appellant is owner of the plot; (b) he is in possession of the plot; and c) he has filled foundations of the plot upto DPC level. However, both the courts regarding the fact, whether defendant has built a wall in the plot in possession of the plaintiff or not, have recorded their differences. Whereas, on the one hand, the trial court has held that the wall was indeed constructed by the defendant in the plot in possession of the plaintiff and had issued a mandatory injunction directing the defendant to demolish the wall raised over the suit property within three months, on the other hand, the lower appellate court has held that the plaintiff has failed to prove that defendant had caused encroachment on his plot by raising the wall and, thus, he is not entitled to the grant of mandatory injunction. Before the reasoning propounded by both the courts below is dealt with, it will be necessary to notice few facts. In the present case, suit was instituted by the plaintiff on 11.3.2000. In the un-amended suit, no reference was made regarding construction of the wall and prayer for its removal. The trial court on 11.3.2000 itself appointed Shri Devinder Singh Advocate as local commissioner. Considering the report of the local commissioner, the trial court granted ad-interim injunction in favour of the plaintiff on 23.10.2000. An application for amendment of the plaint was filed which was allowed on RSA No.3113 of 2008 -: 9 :- 23.5.2002. As stated earlier, this fact was introduced in the amendment that the defendant had constructed the wall in the plot of the plaintiff. Report of the local commissioner is Ex.PW3/3. In his report, the local commissioner has stated as under:- “... The suit property is a plot ABCD having old foundation bricks and is a vacant plot. In the south of the property in dispute another plot BCJI having its construction upto DPC level. The wall E to F is newly constructed wall of stones of about 4 feet high and F to G having foundation level, from G to H foundation only. The wall and bricks foundation are newly constructed by bricks.” The local commissioner had further stated in his report that the defendants were present at the spot and they refused to sign on the notice. To depict the existing construction, local commissioner appended along with his report, site plan Ex.PW3/4. A perusal of the site plan shows that there is wall E to F which in his report is described as new construction of stones whereas F to G is upto foundation level. Local commissioner further observed that the wall and bricks of foundation are newly constructed by bricks. Furthermore, site plan made by Draftsman Ex.P1/A also shows that in the middle of the plot, wall E to F1 has been constructed and the portion of the wall F to G is in the plot of the plaintiff. The lower appellate court had discarded the evidence of draftsman Sat Parkash Mittal PW4 on the ground that he had made the site plan on the demarcation and identification given by the plaintiff. The court has further not relied upon the evidence of the local commissioner PW1 Devinder Singh on the ground that he had no personal knowledge with regard to identification of the plot and he had RSA No.3113 of 2008 -: 10 :- prepared the report after showing prevailing position at the spot. A perusal of evidence of cross examination of Devinder Singh reveals that he had stated that site plan depict the spot and plot ABCD was shown to him by the plaintiff. The lower appellate court ignored the fact that defendants who were present had refused to sign the notices issued by the local commissioner. There is no dispute regarding the identification of the plot ABCD and the lower appellate court also held that the plaintiff is in possession of this plot. What is important is the fact that perusal of site plan Ex.PW3/4 prepared by the local commissioner and the site plan Ex.P1/A prepared by the draftsman do reflect that a wall has been constructed in the middle of the plot. The lower appellate court had relied upon the admission made by plaintiff Nawal Singh in his cross examination when he was recalled for that purpose on 30.11.2004 wherein he stated that when he filed the suit, defendants were making attempt to include some area of the plot of the plaintiff into their area. From all these facts, it is evident that when the suit was filed, the wall was not raised and it was constructed in between 4.3.2000 to 23.3.2000. This explains as to why necessity arose for the plaintiff to amend the plaint and introduce para 3-A. Furthermore, the local commissioner had stated that the wall in the plot shown in the site plan prepared by him Ex.PW3/4 from point E to F and F to G was newly constructed. Thus, the lower appellate court had not taken a vital piece of evidence into consideration. The lower appellate court took into consideration cross examination of plaintiff as witness in isolation and discarded the whole testimony. Could the lower appellate court have considered the evidence in totality, there was no need to disturb the well reasoned finding given by the trial court. Hence, this court has no hesitation RSA No.3113 of 2008 -: 11 :- to hold that the lower appellate court had misread the evidence. Thus, the substantial question of law formulated above is answered in favour of the plaintiff. In view of the discussion made above, the present appeal is accepted and the judgment and decree of the lower appellate court are set aside and those of the trial court are restored. [Kanwaljit Singh Ahluwalia] September 5, 2011. Judge kadyan