RSA NO.2859 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT HANDIGARH RSA NO.2859 of 1985 Date of decision:7.4.2011 Dilbag Singh through his legal heirs …Plaintiff/Appellant Versus Prem Singh and another …defendants/respondents CORAM: HON’BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Rameshwar Malik, Advocate, for the appellant(s). Mr.Ramesh Goyat, Advocate, for the respondents. -.- JITENDRA CHAUHAN, J The present appeal is directed against the judgment and decree dated 26.9.1985 passed by the learned Additional District Judge, Hisar, whereby the appeal of the defendants was accepted and the judgment and decree dated 21.5.1983 passed by the learned trial Court was set aside and the suit of the plaintiff was dismissed. The plaintiff/appellant filed a suit for permanent injunction restraining the defendants/respondents from interferring in his peaceful possession over a plot and a house marked as ABCD in the site plan, Ex.P1, mentioned in the head note of the plaint. It was further case of the plaintiff that the suit land was under his possession and he had also installed there crushing machine (Kohlu), Manger (Khor), hand-pump and danghills (Bitoras). The plaintiff also took the stand that the defendants have no right or title over the suit property. RSA NO.2859 of 1985 2 The defendants contested the suit on the grounds that the suit was not maintainable in the present form. The plaintiff did not come with clean hands as the site plain filed by the plaintiff is not according to the site in dispute. The portion shown in the red colour in the site plan, filed by the plaintiff, is owned and possessed by the defendants etc. The installation of kohlu, hand-pump etc. was denied by the defendants. From the above pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is owner in possession of the property marked by letters `ABCD' in the site plan attached with the plaint? OPP 1-A Whether the report of learned Local Commissioner is liable to be set aside as alleged in the objection petition?OPP. 1-B Whether the defendants have violated ad-interim injunction issued against them by the court, if so, its effect? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff has not come to the court with clean hands and has suppressed the material facts from the court, if so, its effect? OPD 4. Whether the site plan filed by the plaintiff is according to the site in dispute? OPP 5. Whether the portion shown red in the site plan filed by the plaintiff is owned and possessed by the defendants? OPD RSA NO.2859 of 1985 3 6. Whether the proper court fee has not been paid? OPD 7. Whether the plaintiff is estopped from filing the suit by his act, and conduct, as alleged? OPD 8. Whether the plaintiff has no locus standi to file the suit? OPD 9. Whether the suit is bad for non-joinder /mis-joinder of partes? OPD 10. Whether the civil court has no jurisdiction to try the present suit? OPD 11. Relief. After considering the entire evidence, the learned trial Court decreed the suit of the plaintiff and defendants were permanently restrained to interfere in the peaceful possession of the plaintiff over the suit land. Feeling aggrieved by the judgment and decree of the learned trial Court, the defendants preferred an appeal, which was allowed by the Ist Appellate Court holding that the plaintiff could be granted relief of injunction only on positive proof of the fact that he was in the continued enjoyment of possessory rights over the suit land, which fact the plaintiff failed to prove. Hence the present appeal. Learned counsel for the appellants has submitted that the house of the plaintiff/appellants is adjacent to the plot in dispute and the doors of the house open in the said plot, whereas the houses of the defendants are at a considerable distance from the plot in dispute. This fact alone is sufficient to prove the possession and ownership of the plaintiff/appellants. It has further been submitted that on the basis of the report, Exhibit P.3, of the Local Commissioner Sh. Babu Ram Jain, Advocate, RSA NO.2859 of 1985 4 PW3, the possession of the plaintiff over the plot in dispute was fully established as there were signs of existence of crushing machine (Kohlu) and hand-pump and the same were removed forcibly by the defendants during the pendency of the civil suit. Learned counsel has also submitted that the plaintiff was in possession of the land in dispute alongwith his grand-father and his grand- father passed the possession and ownership of the said property in favour of the plaintiff vide decree, Exhibit P3. Therefore, the factum of ownership and possession is fully established in favour of the plaintiff/appellants. It has further been submitted that no evidence was produced by the defendants, which proves the ownership of the defendants over the plot in dispute. Even the witnesses of the defendants admitted that house of the plaintiff was adjoining the plot in dispute and its doors open towards the plot in dispute. On the other hand, learned counsel for the defendants submits that the decree, Exhibit P3, cannot be relied upon as the said decree has been granted during the pendency of the suit. He has also submitted that mere the fact of some structures or old installations were found to be there at the time of inspection could not by any stretch of imagination warrant an inference that the site was in possession of the plaintiff. I have heard the learned counsel for the parties and perused the record with their able assistance. The main question arises for determination of this Court is as under:- “1. Whether the judgment and decree of the Ist Appellate Court suffers from misreading of the evidence or on conjectures and RSA NO.2859 of 1985 5 surmises? This regular second appeal is against the judgment of reversal. In Jagdish Singh Vs. Madhuri, (2008) 10 SCC 497, it has been held that three requisites should normally be present before an Appellate Court reverses a finding of the trial Court:- (i) it applies its mind to reasons given by the trial Court; (ii) it has no advantage of seeing and hearing the witness; and (iii) it records cogent and convincing reasons for disagreeing with the trial Court. It is certainly open to this Court to reappraise the evidence and come to its own conclusion if it finds that the reasons of reversal or conclusion arrived at by Ist Appellate Court were not in consonance with law and evidence on record. As per the report of the Local Commissioner, Exhibit P2, there was no crushing machine (kohlu) and hand-pump on the site in dispute, however he mentioned in his report that there were visible signs of crushing machine (kohlu) and hand-pump on the site in dispute. In the fact situation, the claim of the plaintiff seems to be corrects that in spite of order of restraint, the defendants removed the said crushing machine (kohlu) and hand-pump. This fact is further proved from the calendra under Section 107 Cr. P.C. (Mark DB) No. 15 dated 20.3.1981, which suggests that the defendants removed the crushing machine (kohlu) and the hand-pump of the plaintiff from the property in dispute during the pendency of this suit. The claim of the plaintiff is further established by site plan, Exhibit P1. It has also come on record that the electricity connection was RSA NO.2859 of 1985 6 given to the plaintiff on 27.6.1979 in the suit property, which is established by the statement of Vijay Singh, PW1 (Junior Engineer). If the defendants had any claim over the property in dispute, they ought to have objected the electric connection or the electric wires passing over the property in dispute. To prove his possession on the suit property, the plaintiff examined number of witnesses and they all categorically deposed that the property in dispute is in possession of the plaintiff alongwith his brother and grandfather. In the site plan, Exhibit P.1, there is a street between the property in dispute and the house of Balbir Singh and Prem Singh, defendants. The house of Suraj Mal and Har Lal do not adjoin the property in dispute. The site plan, Exhibit D1, produced by the defendants also shows that the property in dispute does not adjoin the property of Balbir Singh, Prem Singh, Suraj Mal, Har Lal, Fateh Singh, Dewan Singh, Parbha Abhey, Abhey Ram and Rattan Singh. One of the defendants Suraj Mal deposed that the doors of the front portion of his house opens in the site in dispute, however the evidence led by the defendants suggests that the house of Suraj Mal, Har Lal do not adjoin the property in dispute. The stand of Suraj Mal is contradicted by DW2 and DW5 to the extent that the house of Suraj Mal and Har Lal do not adjoin the site in dispute. In the site plan, Exhibit D1, the house of Suraj Mal and Har Lal are not shown. DW4 Om Parkash deposed that there is path between the property in dispute and that of Prem Singh and Balbir Singh. It has also come on record that the defendants belong to separate families and therefore, it cannot be said that they have joint possession of the suit property. The factum of possession over the property in dispute is fully established in favour of the plaintiff vide decree Exhibit P3. Satbir Singh, RSA NO.2859 of 1985 7 village Sarpanch, PW4, Tek Ram, Lambardar, PW5 and Jeet Ram, Member Panchayat, PW7, are the respectables, who on oath deposed in the Court that the plaintiff is in possession of the property alongwith his brother and grandfather for the last 30 years. There is no reason to discard their testimonies. The Ist Appellate Court has misread the evidence regarding possession of the plaintiff. The plaintiff has thus fully proved that he is in possession of the property in dispute as shown in site plan, Exhibit P1. However, none of the parties could establish ownership over the property in dispute. Once the plaintiff is held to be in possession of the property in dispute, his peaceful possession deserves to be protected. Keeping in view the finding on issue No.1, which is being decided in favour of the plaintiff, this Court need not to go to other issues. No other substantial question of law arises for determination of this Court. In the circumstances, this Court feels that the possession on the property in dispute is proved in favour of the plaintiff/appellants and accordingly, the present appeal is allowed. The judgment and decree dated 26.9.1985 passed by the first appellate court is set aside, whereas the judgment and decree dated 21.5.1983 passed by the trial Court is restored. 7.4.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No