Punjab And Haryana High Court · 2010

Norang Rai-appellant/plaintiff filed suit for permanent injunction restraining Lakhi respondent/defendant from interfering in his possession and enjoyment of the house in dispute, situated near Hanuman Gate, Bhiwani, Tehsil and District Bhiwani, fully detailed in the heading of the plaint and marked as ABCD in the site plan attached therewith and also from taking forcible possession of the open land marked as EFCD and further restraining him to cut the neem tree standing in that open land and from raising any construction therein. The suit of the plaintiff was decreed by the Sub Judge Ist Class, Bhiwani, vide judgment and decree dated

6.4.1983 and the defendant was restrained from interfering in his possession over the house in dispute marked as ABCD and open land as EFCD. The defendant preferred the first appeal, which was accepted, vide judgment and decree dated 5.11.1984 by the District Judge, Bhiwani, and the suit of the plaintiff was dismissed. It is against that judgment and decree that the RSA No. 3082 of 1984 2 present second appeal has been preferred by the plaintiff. The case of the plaintiff, as pleaded in the plaint, is that he is the owner in possession of the house marked ABCD and the defendant is residing in his neighbourhood on the eastern side. One tree of neem is standing in his house, which is in the open land, marked as EFCD. The defendant is forceful person and is trying to dispossess him from the open land and cut the neem tree. The suit was contested by the defendant. In his written statement he denied the contentions of the plaintiff and, inter-alia, pleaded that though the house of the plaintiff is located in the area ABEF but he has no right, title or interest in the land EFCD, which is exclusively owned by him. The land marked as ABEF was purchased by the father of the plaintiff from his father. The open land EFCD was his (defendant) ancestors' property and in the family partition had fallen to his share and he is coming in possession thereof. The plaintiff has no right, title or interest therein. It was land measuring 50' x 18' which was purchased by the father of the plaintiff and he is coming in possession of that area. The plaintiff has no locus-standi to file the present suit and the the same is not maintainable. On the pleadings of the parties, the following issues were framed by the trial court:-

1. Whether the plaintiff is the owner in possession of the house marked with letters ABCD, including the open land EFCD ? OPP

2. Whether the defendant is the owner in possession of the site marked with letters EFCD in the site plan of the plaintiff ? OPD RSA No. 3082 of 1984 3

3. Whether the site plan produced by the plaintiff is wrong and its effect ? OPD

4. Whether the plaintiff has no locus standi or cause of action to file the present suit ? OPD

5. Whether the suit is bad for non-disclosure of facts ? OPD

6. Whether the suit is malafide and its effect ? OPD

7. Whether the suit property has not been properly described in the plaint and its effect ? OPD

8. Whether the suit is not maintainable in the present form ? OPD

9. Relief.” To succeed in the suit, the plaintiff examined himself as PW-1, Itbari Lal (PW-2), Kenhaya (PW-3), Chander (PW-4) and Richpal (PW-5). On the other hand, defendant entered the witness box as DW-1 and examined Dunger (DW-2). After going through the evidence so produced on the record and hearing learned counsel for both the sides, the trial court decided all the issues in favour of the plaintiff and resultantly, decreed her suit. I have heard learned counsel for both the sides. Learned counsel for the plaintiff assailed the findings recorded by the first appellate court to the effect that the plaintiff is not in possession of the open land EFCD. He submitted that the first appellate court committed an illegality while upsetting the well reasoned findings recorded by the trial court in favour of the plaintiff. There is categoric admission by the defendant (DW-1) that the property of the plaintiff is measuring 72' x 18' and that at present his house ABCD is in the area of 50' x 18'. There is a RSA No. 3082 of 1984 4 road on the other side and in that eventuality, this open land clearly forms part of his house. From the trustworthy evidence of the plaintiff, it stands proved that he is coming in possession of the open site as owner and the defendant has no right therein. Even the inspection note recorded by the District Judge creates confidence in the evidence of the plaintiff regarding his possession. He had not found the defendant to be in possession at the time of his inspection. The first appellate court ignored the admission made by the defendant and his witness, while recording a finding in favour of the defendant. That finding which is the result of the misreading of the evidence is liable to be set aside and the suit of the plaintiff deserves to be decreed. On the other hand, it has been submitted by the learned counsel for the defendant that no such illegality was committed by the first appellate court while upsetting the finding of the the trial court recorded in favour of the plaintiff, which was result of the misreading of the statement of the plaintiff and his witnesses. No such admission was made by the defendant and his witness. No such admission was made by them that either the plaintiff was the owner or is in possession of the open land EFCD. Learned counsel for the plaintiff has tried to misinterpret the inspection note recorded by the District Judge. It was found at that time of inspection of the spot that this open site is being used by defendant. Detailed reasons were recorded by the first appellate court while recording that finding and no fault can be found with those reasons and there is no ground for upsetting that well reasoned finding. Before deciding the first appeal, the learned District Judge visited the property in dispute and recorded the inspection note regarding RSA No. 3082 of 1984 5 his observations. He found only some stones lying on the spot. He also found the site plan proved on record by the plaintiff Ex. P.1 and the site plan proved by the defendant as Ex. D1 to be correct. He took that inspection note into consideration while interpreting the evidence produced by the parties. Admittedly, this open land is a vacant site. Therefore, possession thereof is to go with the ownership. No documentary evidence was produced by the plaintiff for proving his ownership. The evidence produced by the plaintiff that he is coming in possession thereof was duly rebutted by the defendant by producing cogent and convincing evidence. There is no such admission made by the defendant or his witness during his cross-examination, on the basis of which the finding was recorded in favour of the plaintiff by the trial court. In fact, the same is based on the misreading of the evidence. It is pertinent to note that the plaintiff himself put some questions to the defendant (DW-1) during his cross-examination and the relevant portion of the statement made by the defendant is re- produced below:- “No door of the house of Norang open towards the northern side. There is no door at point 'B' and the wall at 'EF'' is in straight line. The door of the house of the plaintiff is towards south.” It is pertinent to note that the defendant was not further cross- examined by the plaintiff on all these aspects nor it was put to him that all these answers given by him were not correct. If this part of the statement of the defendant is read, in context with the position as shown in the map Ex. P.1, it becomes very much clear that the plaintiff cannot be in possession of RSA No. 3082 of 1984 6 this open land EFCD, which is situated on the northern side of his house. The door of his house is shown to be on the southern side. If there is a wall at place 'EF' and there is no gate in that wall, and as such he has no access, then how he can claim that he is in possession of this open space. No doubt, it was stated by the defendant, during his cross- examination, that the area of the house of the plaintiff is 72' x 18' and it is also a fact that the plaintiff is coming in possession of the area of 50' x 18', but the position was made clear by the defendant in his statement when he deposed that the other part of the property of the plaintiff has come in the road. After carefully perusing the records of this case, this Court has come to the conclusion that the findings recorded by the first appellate court do not suffer from any illegality and it cannot be said that those findings were recorded on mis-reading of the evidence or are perverse. There is no ground to interfere with those findings. Therefore, this appeal is dismissed and the judgment and decree passed by the first appellate court is upheld. November 11, 2010 (GURDEV SINGH ) JUDGE