RSA No. 740 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 740 of 2009 (O&M) Date of decision 5.8.2011. Sarabjit Singh ...... Appellant. versus Jaspal Singh and Others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. J.S.Brar, Advocate for the appellant. Mr. P.S.Thiara, Advocate for the respondent Nos.1 and 2. K.C.PURI . J. This appeal is directed by defendants/appellants against the judgment dated 22.7.2008 passed by Shri Sunil Kumar Arora, Additional District Judge, Hoshiarpur, vide which the appeal preferred by the defendants/appellants against the judgment and decree dated 16.7.2007 passed by Mr.Daljit Singh Ralhan, PCS, Civil Judge ( Junior Division ) Dasuya was dismissed. Jaspal Singh and Satnam Singh plaintiffs have filed the suit for declaration to the effect that they are joint owners in possession of land measuring 5½ marlas situated within lal-lakir of village Khuda Tehsil Dasuya and marked ABCD as shown red in colour in the site plan attached RSA No. 740 of 2009 2 with the plaint and bounded as under :- North :- House of Jagat Singh South :- Public Street East :- House of Jagat Singh and others West :- House of Amar Nath and others situated in village Khuda, Tehsil Dasuya, District Hoshiarpur with permanent injunction as consequential relief restraining the defendants from interfering dispossessing in any manner the plaintiff from the suit land in due course of law. Notice of the suit was issued to the defendants. Defendant Nos.1, 3 to 5 appeared and contested the suit by filing written statement raising preliminary objections that the suit is barred under Order 23 of the Code of Civil Procedure, not maintainable in the present form, the plaintiffs have no locus standi to file the present suit, the site plan is wrong and is liable to be rejected and the suit is barred by the principle of res judicata. On merits, it has been asserted that the plaintiffs are joint owners in possession. Mohan Lal defendant No.1 and Banta Singh were two brothers. There were two houses in the area of village Khudda. The houses were partitioned through a family settlement dated 15.9.1958. As per writing dated 15.9.1958, defendant No.1 was given the house bounded as under :- East :- House of Chanan Singh and Harnam Singh, now Jagat Singh as their legal heir, West :- House of Harnam Singh and Taur of Ram Lal now purchased by Amar Nath. North :- House of Lachhman Das and South :- Public Street and house of Ishar. RSA No. 740 of 2009 3 The house given to Banta Singh is bounded as under :- East :- Taur of Prabh Singh and others, West :- Street, North :- Street, and South :- Taur of Chanan daughter of Partap Singh and others. On the basis of settlement, defendant No.1 and his brother ceased to be joint owners of the Abadi and became the owner in possession of their respective houses as per settlement dated 15.9.1958. After the settlement defendant No.1 sold his house to Suresh Kumar and Satnam Singh through a registered sale deed dated 16.8.1971 for a consideration of Rs.2000/-. Similarly, Banta Singh sold his house to Dhanpat Rai prior to 1971. It has been further alleged that Dhanpat Rai further sold the suit property to Ram Dayal, remained owner of any portion within the abadi. Denying other averments they prayed for dismissal of the suit. Defendant No.2 by way of separate written statement contested the suit by raising preliminary objections that the suit is not maintainable and the plaintiffs have no locus standi to file the present suit. On merits, it is alleged that the plaintiff was handed over the vacant possession of the suit property at the time of sale deed dated 8.5.1990 executed by the defendant in favour of the plaintiff and since then the plaintiff is in continuous peaceful and actual possession of the suit property. Defendant No.2 prayed that the suit of the plaintiff may be decreed and was proceeded against ex-parte on 6.3.2002. From the pleadings of the parties, following issues were framed on 7.12.1999 :- RSA No. 740 of 2009 4 1. Whether the plaintiffs are joint owners in possession of the property in dispute ?OPP II. Whether the plaintiffs are entitled to decree for declaration ? OPP III. Whether the plaintiffs are entitled to decree for permanent injunction ?OPP IV. Whether the present suit is barred under order 23 CPC ? OPD. V. Whether the suit is not maintainable :OPD VI. Whether the plaintiffs have no locus standi to file the present suit ?OPD. VII. Whether the present suit is barred by the principle of resjudicata ?OPD VIII. Relief. In order to establish his case plaintiff Jaspal Singh appeared as (PW-1) as his own witness and also examined Vasdev Saini (PW-2) and closed his evidence. The defendants No.1, 3 to 5 did not opt to lead any evidence. The trial Court after hearing the learned counsel for the parties decreed the suit of the plaintiff vide judgment and decree dated 16.7.2007. Defendants went in appeal before the learned Additional District Judge, Hoshiarpur, who after hearing the learned counsel for the parties dismissed the appeal vide judgment and decree dated 22.7.2008. Still feeling, dissatisfied, the defendants/appellants have preferred the present regular second appeal. The defendants/appellants in paragraph No.11 of the grounds of appeal has mentioned that following substantial questions of law have RSA No. 740 of 2009 5 arisen in the present appeal :- I. Whether the suit for declaration was maintainable without the consequential relief of possession where the respondents have failed to show their possession of the land in dispute ? II. Whether respondent No.3 without having any title to the property in question could deliver a better title to respondent No.1 and 2? III. Whether the concession given by a counsel can be impliedly taken as permission of the court under Order XIII Rule 1(4) of CPC ? IV. Whether the family settlement under which the property in dispute was given to the share of Mohan Lal son of Sadhu Singh and was recorded in writing needed to be proved with onus to prove on the appellant/defendant? V. Whether the Court below have merely acted upon suppositions, conjectures and surmises, while delivering the judgments in the instant case ? VI. Whether the respondent/plaintiff failed to adduce sufficient/cogent evidence to prove that the suit land was in their possession ? VII. Whether the sale deed dated 8.5.1990 executed by respondent No.3 in favour of respondent No.1 and 2 was validly proved ? VIII. Whether the title of respondent No.3 was proved before the courts below ? IX Whether the proof of a sale deed is the proof of good title? I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. RSA No. 740 of 2009 6 Learned counsel for the appellant has submitted that counsel for the defendant/appellant has closed the evidence in the trial Court without leading any evidence. An application for additional evidence was made but the same was dismissed by the Civil Judge (Junior Division), Dasuya vide order dated 8.6.2007. An application under Order 41 Rule 27 CPC has also been filed in the present appeal enabling the appellant to prove the family settlement dated 15.9.1958, registered sale deed dated 16.8.1971 and sale deed dated 3.8.1995. These documents are material documents for the decision of the case. The appellant cannot be allowed to suffer on that account. However, he was fair enough to concede that in case the application for additional evidence is not allowed, in that case, the appellant cannot succeed as there is no evidence on behalf of the defendant-appellant on the file. In this case, from the perusal of the file of the trial Court, it is revealed that the plaintiff has closed his evidence on 6.11.2001 and the case was adjourned to 12.12.2001 for DWs. The case was adjourned to 25.1.2002 and on 22.2.2002 for evidence of defendants, but no evidence was produced by the defendants. On 6.3.2002, the case was fixed for evidence of the defendants. However, counsel for defendants No. 1,2,3 and 5 i.e. appellants closed the evidence by making statement. That statement has been challenged. No doubt in the trial Court, an application for additional evidence was moved, but that was dismissed vide order dated 8.6.2007. The appellant was given full opportunity to lead evidence according to Civil Procedure Code and they have closed the evidence by making statement through counsel. There is nothing on the file that RSA No. 740 of 2009 7 appellant has made any complaint against the Advocate for closing his evidence. So far as similar application made before this Court under Order 41 Rule 27 CPC is concerned, learned counsel for the appellant could not convince the Court as to how these documents are relevant for decision of the case. Boundaries and area mentioned in the sale deeds are different. So, in view of the above discussion, no ground for allowing the application under Order 47 Rule 27 CPC is made out. I have no hesitation in holding that Courts below have given full opportunity to the appellant to lead the evidence and evidence was closed by making statement. The suit of the plaintiff has been decreed on the basis of registered sale deed. There is nothing on the file that any ground for interference in the regular second appeal is made out. The questions of law raised by the appellant does not exist as there is no evidence on behalf of the appellant on the file. So, I have no hesitation in holding that no substantial question of law has arisen in the present appeal. Consequently, the application under Order 47 Rule 27 CPC, as well as, the regular second appeal are without any merit and the same stand dismissed with costs. A copy of the judgment be sent to the trial Court for strict compliance. ( K.C. Puri ) August 05 , 2011 Judge sv/chugh