Sohan Singh v. Smt. Amar Kaur, widow and legal representative of Sansar

suit of the plaintiffs (now appellants).

2. The plaintiffs (now appellants), claimed that, the site ADEFGHIJCB, as shown, in the site plan, was owned and possessed by them, and, they had constructed their residential house, on the eastern side thereof. The western side of the said site, was being used, as a court-yard. The house of Sansar Singh, defendant No 1 (respondent) (now deceased), adjoined the house of the plaintiffs, as shown in yellow colour, in the site plan and marked as X. A street in between the court-yard of the house of the plaintiffs and Bara of Sansar Singh, defendant No. 1 (now deceased), is shown in yellow colour, in the site plan and marked as Y. The house of Smt. Charan Kaur, defendant No. 2/respondent, is shown in yellow colour and marked as Z. The plaintiffs, constructed the wall from points A to B upto the foundation. The rest of the portion of the wall BC, had not been constructed, as they were not allowed, by the defendants/respondents, to construct the same. It was further stated that, the the defendants, had no right in and concern with the site, in dispute, whatsoever. They, however, being head-strong persons, were interfering in the construction of the remaining portion of the wall by the plaintiffs. They were many a time asked, not to do so, but to no avail. Left with no alternative, a suit for permanent injunction was filed.

3. The defendants put, in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was stated that, there was no street, as alleged, by the plaintiffs, RSA No. 689 of 1984 3 in existence, towards the north of the line ABC. It was further stated that, the property of the defendants, had also been wrongly and partially depicted, in the site plan. It was further stated that, the plaintiffs, were not the exclusive owners in exclusive possession of the site, in dispute. On the other hand, it was stated that, the site plan, in dispute, was reserved for joint use of all the co-sharers, and, the plaintiffs, had only 1/5th share, in the said joint site. It was further stated that, Resham Singh husband of defendant No. 2, Arjan Singh, Punjab Kaur and Malkiat Singh, were necessary parties, to the suit, being co-sharers. It was further stated that, even on 08.01.58, the site plan of the property, in dispute, was got prepared, from Ram Lal, Draftsman, wherein, it was clearly recorded, that the same (site), was joint, being held by the plaintiffs and defendants and other co-sharers. It was further stated that, the plaintiffs, had no right, whatsoever, to construct the wall, in the joint property, in dispute. The remaining averments, were denied, being wrong.

4. On the pleadings of the parties, the following issues were struck:- (i) Whether the site marked ADEFGHIJCB as shown in the site plan, attached with the plaint, is owned and is in possession of the plaintiffs? OPP (ii) Whether the plaintiffs are entitled to construct wall at point ABC shown in the site plan? OPP (iii) Whether the site plan filed by the plaintiffs is not correct? OPD RSA No. 689 of 1984 4 (iv) Whether the property in dispute is joint property of the co-sharers and the plaintiffs have got only 1/5th share in the said property? OPD (v) Whether the suit is bad for non-joinder of Resham Singh, Arjan Singh, Punjab Kaur and Malkiat Singh as parties to the suit? OPD (vi) Whether the plaintiffs are entitled to the injunction prayed for? OPP (vii) Relief.

5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiffs.

6. Feeling aggrieved, an appeal, was preferred by the defendants (now respondents), which was accepted, by the Court of Additional District Judge, Hoshiarpur, vide judgement and decree dated 18.01.84.

7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants.

8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.

9. The following substantial questions of law arise, in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, as also law, on the point, that the property, in dispute, was not the exclusive ownership in exclusive possession of the appellants, and, as RSA No. 689 of 1984 5 such, they had no right, to construct the wall, in question therein? (ii) Whether the first Appellate Court, was wrong, in placing reliance, on D1, stated to be a copy of the original site plan, which never saw the light of the day, nor any application, was moved, by the lead secondary respondents, evidence, in respect thereof?

10. The Counsel for the appellants, submitted that, from the evidence, produced by the appellants, it was proved, that the property, in dispute, was their exclusive ownership and they were in exclusive possession thereof. He further submitted that, defendants/respondents, no doubt, took up the plea, in the written statement, that the property, in dispute, was jointly owned by the plaintiffs and other co-sharers, yet, they failed, to prove that factum by adducing cogent and convincing evidence. He further submitted that, since the defendants/respondents, failed to prove the jointness of the property, in question, the first Appellate Court, was wrong, in holding so. He further submitted that, according to Section 110 of the Indian Evidence Act, since the plaintiffs, were in possession of the site, in dispute, the burden, was on defendants, that they were not the owners of the same. He further submitted that, D1, stated to the copy of the site plan, was not legally admissible into evidence, as the original thereof, never saw the light of the day, nor any application, was moved, by the defendants/respondents, to lead secondary evidence, in respect thereof, nor any such permission, was granted, by the trial Court. He further submitted that the judgement and decree of the trial Court, were, thus, RSA No. 689 of 1984 6 legal and valid, whereas, the first Appellate Court, recorded perverse findings, on account of misreading and misappreciation of evidence, and, the same, are liable to be set aside.

11. On the other hand, the Counsel for the respondents, submitted that, since the appellants, in clear-cut terms asserted, that the property, in question, was their exclusive ownership, it was, for them, to prove this factum, and, on their failure, to do so, their case, was bound to fail. He further submitted that, no documentary or any other cogent or convincing oral evidence, was produced, on the record, by the plaintiffs/appellants, to prove, that they were the exclusive owners, in exclusive possession of the property, in dispute. He further submitted that, the trial Court, merely on the basis of suggestions, conjectures and surmises, could not come to the conclusion, that the property, in dispute, belonged to the plaintiffs. He further submitted that, since the plaintiffs, were not in exclusive possession of the site, in dispute, the provisions of Section 110 of the Indian Evidence Act, were not applicable to this case. He, however, submitted that, the original site plan D1, never saw the light of the day, as the same was in possession of the plaintiffs. He further submitted that, once D1, was exhibited, without any objection, from the side of the plaintiffs, the same, could be legally read into evidence. He further submitted that, the first Appellate Court, did not record perverse findings, on account of misreading or misappreciation of evidence.

12. After giving my thoughtful consideration, to the rival RSA No. 689 of 1984 7 contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal, is liable to be dismissed, for the reasons to be recorded, hereinafter. It is settled principle of law, that this Court, in the Regular Second Appeal, cannot interfere with the findings of fact, recorded by the first Appellate Court, until and unless, it comes to the conclusion, that the same, were the result of misreading or misappreciation of evidence or law, on the point. No documentary evidence, was produced, by the plaintiffs, to prove, that they were the exclusive owners, in exclusive possession of the site, in dispute. Didar Singh, one of the plaintiffs, while appearing, as PW1, only stated, that he claimed himself to be the owner of the property, in dispute, as was told, to him, by his parents. During the course of cross-examination, it was stated by him, that a parnala of the house of Punjab Kaur and Sansar Singh, one of the defendants (now deceased), was towards the site, in dispute. He also admitted, during the course of his cross- examination, that there was no wall previously, at the place, where he was going to construct the same. Ajmer Singh, PW2, stated that, one door of the house of Resham Singh husband of Charan Kaur, defendant/respondent No. 2, and, one door of Sansar Singh, defendant/respondent No. 1 (now deceased), opened towards the disputed property. He also admitted, during the course of his cross- examination, that prior to the construction of the wall, shown red, in the site plan, whole of the property, in dispute, was in the shape of a taur. He also admitted it correct, during the course of his cross- RSA No. 689 of 1984 8 examination, that Sansar Singh and Charan Kaur, used to pass through the site, in dispute, after they had opened their doors. Since the parnalas of the houses of Punjab Singh and Sansar Singh, defendant (since deceased), as also the doors of the houses of the defendants, opened towards the property, in dispute, a reasonable inference, could be drawn, that the same, was joint. Had the property been not joint, the plaintiffs, would not have allowed the doors of the houses of the defendants and spout of the house of one of the defendants, to open towards the said site. The onus lay heavily upon the plaintiffs, to prove their exclusive ownership and exclusive possession of the property, in dispute. Mere oral statements of Didar Singh, one of the plaintiffs and Ajmer Singh, PW2, that too not cogent and convincing, could not be said to be sufficient, to prove the exclusive ownership of the plaintiffs, in respect of the property, in dispute. Why no document, with regard to the ownership of the property, in dispute, was produced, by the plaintiffs, is not known. Merely, on the basis of suggestions, during the course of the statements of the defendants, it could not be concluded, that the plaintiffs, were the exclusive owners of the property, in dispute. As stated above, the property, in dispute, was a taur and was in joint possession of all the co-sharers, who were enjoying the same. The plaintiffs, were not in exclusive possession thereof. As such, the provisions of Section 110 of the Indian Evidence Act, are not applicable to this case. The first Appellate Court, was, thus, right in holding, that since the plaintiffs, failed to prove their exclusive RSA No. 689 of 1984 9 ownership and exclusive possession, in respect of the property, in dispute, they were not entitled to construct the wall, thereon, and, their case was bound to fail. The findings, recorded by the first Appellate Court, in this regard, being based on the correct reading and due appreciation of evidence, do not suffer from any perversity or illegality, warranting the interference of this Court. The submission of the Counsel for the appellants, therefore, being without merit, must fail, and, the same stands rejected.

13. Now coming to exhibit D1, which was prepared, in the year 1958, it may be stated here, that this document, being the purported copy of the original, was not legally admissible into evidence. In case, the original of this document, was in possession of the plaintiffs, then, an application, could be moved by the defendants, to lead secondary evidence, on their failure on notice, having been issued, to them, to produce the original. They, however, did not do so. Under these circumstances, mere exhibition of a legally inadmissible document, without any objection, from the opposite side, did not prove the same, nor made the same, to be legally admissible. In Arya Mittar and another Vs. Dr. Ashok Kumar Goel (2010-2), The Punjab Law Reporter, 75, similar principle of law, was laid down, by this Court. The first Appellate Court, was, thus, wrong in placing reliance upon exhibit D1, a purported copy of the original, being legally inadmissible document, as stated above. Even if, this document, is not taken into consideration, the other evidence, produced by the plaintiffs, as stated RSA No. 689 of 1984 10 above, could not be said to be sufficient, to prove them, to be the exclusive owners in exclusive possession of the property, in dispute. In this view of the matter, even if, this document, is discarded, from consideration, the decision of the first Appellate Court, would not be affected.

15. No other point, was urged, by the Counsel for the parties. The substantial questions of law, are answered, in the manner, depicted above.

16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed with costs.

06.07.2010 Amodh (SHAM SUNDER) JUDGE RSA No. 689 of 1984 11 R.S.A. No. 689 of 1984 Present: Mr. S.K. Chopra, Advocate, for the appellants. Mr. Arun Nehra, Advocate, for the respondents. * * * * Two pages of the original plaint, are missing, though, this appeal, was listed for final hearing, as it relates to the year 1984. The same (two pages of plaint), having not been traced, as yet, photocopy of the complete plaint, was supplied, by the Counsel for the respondents, which has been admitted to be correct, by the Counsel for the appellants. Loss with regard to two pages of the original plaint, shall be intimated to the authorities concerned after preliminary enquiry for taking necessary action, against the concerned officer(s)/official(s) separately.

06.07.2010 Amodh (SHAM SUNDER) JUDGE