Hira Lal v. Hari Singh

Judgment

1. Hari Singh;

2. Manohar Lal; both sons of Mangal Ram son of Ghisa Ram, residing in Mohalla Bawaripur, at Narnaul, in District Mohindergarh (Haryana). ...Respondents

CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.S. Bhangu, Advocate, for the appellant. Mr. Vivek Singla, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree dated 17.03.82, rendered by the Court of Senior Sub Judge, Narnaul, vide which, it dismissed the suit of the plaintiff, and, the judgement and decree dated 14.09.84, rendered by the Court of Additional District Judge (II), Narnaul, vide which, it dismissed the appeal.

2. The facts, in brief, are that, the plaintiff, who is the owner RSA No. 117 of 1985 2 of a house, situated at Mohalla Bawaripur, Narnaul, as fully described in para No.1 of the plaint, was using a passage, measuring 25 feet 9 inches wide, on the southern side, and, 21 feet wide, on the northern side. It was stated that, the defendant, who was having his plot, bearing No. 569, on the south-eastern of the house of the plaintiff threatened to encroach upon the passage to the extent of five feet. The defendant, was many a time asked, not to do so, but, to no avail. Ultimately, left with no alternative, a suit for permanent injunction was filed.

3. The defendant, put in appearance, and filed written statement, wherein, he took up various objections, and contested the suit. It was denied that, the site, in dispute, was a passage. It was stated that, the land, claimed to be passage, in dispute, by the plaintiff, belonged to the defendant. It was further stated that, the plaintiff, wanted to create a passage, through the plot of the plaintiff. The remaining averments, were denied, being wrong.

4. In the replication, filed by the plaintiff, he reiterated all the averments, contained in the plaint, and, repudiated those, contained in the written statement.

5. On the pleadings of the parties, the following issues, were struck:- (i) Whether the disputed site in an encroached passage for plaintiff's house, as claimed? OPP (ii) Whether plaintiff is the owner in possession of the house? OPP RSA No. 117 of 1985 3 (iii) Whether the suit is not maintainable as alleged? OPD (iv) Relief.

6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff.

7. Feeling aggrieved, an appeal, was preferred by the plaintiff (now appellant), which was also dismissed, by the Court of Additional District Judge (II), Narnaul, vide judgement and decree dated 14.09.84.

8. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellant.

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

10. The following substantial question of law arises, in this appeal, for the determination of this Court:- Whether the Courts below, recorded perverse findings, on misreading and misappreciation of evidence, that no passage existed, on the southern side of the plaintiff the property of (now appellant)?

11. The Counsel for the appellant, submitted that, no doubt, the original sale deed dated 17.02.78, was not produced, vide which, the appellant, purchased the property, from Ganga Din, yet, mark F, photocopy thereof, was admissible, being a copy of the private document, kept in the public record. He further submitted that, according to mark F, on the southern side of the property, purchased by RSA No. 117 of 1985 4 the appellant, passage, had been shown, defendants/respondents, wanted to encroach upon the same. He further submitted that, the Courts below, recorded perverse findings, that no passage existed, on the southern side of the property of the plaintiff/appellant. He further submitted that, the findings of the Courts below, thus, being illegal, are liable to be set aside.

12. On the other hand, the Counsel for the respondents, submitted that the concurrent findings, were recorded, by the Courts below, to the effect, that the sale deed, was not produced, by the plaintiff, to show, that on the southern side of the property, purchased by him, from Ganga Din, there was a passage. He further submitted that CX, the site plan, which was admitted by both the parties to be correct, did not show any passage, on the southern side of the property of the plaintiff. He further submitted that the findings of the Courts below, in this regard, being not perverse and illegal, are liable to be upheld.

13. After giving my thoughtful consideration, to the rival 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. According to the plaintiff, he purchased the property, in dispute, from Ganga Din. The original sale deed never saw the light of the day. The plaintiff, only produced mark F, photocopy of the said sale deed. He even did not produce, on record, the certified copy of the said sale deed. Since the sale deed, which was executed, in favour of the plaintiff, by Ganga Din, was not proved, and, photocopy RSA No. 117 of 1985 5 mark F thereof, was not admissible into evidence, the Courts below, were right, in discarding the same. No other relevant documentary evidence, was produced, by the plaintiff, to prove that, on the southern side of the property, purchased by him, there existed a passage. CX is the certified copy of the site plan, the original of which was attached with the sale deed of the plaintiff, which was admitted and relied upon by both the parties. The perusal of CX, does not show, that there is any passage, on the southern side of the property of the plaintiff/appellant. The Courts below, were, thus, right in recording concurrent findings of fact, that no passage existed, on the southern side of the property of Hira Lal, plaintiff/appellant.

14. The judgements and decrees of the Courts below, being based, on the correct reading and due appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, warranting the interference of this Court. The same, are liable to be upheld.

15. The substantial question of law, depicted above, is answered, against the appellant.

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

14.07.2010 Amodh (SHAM SUNDER) JUDGE