Thakar Dass v. Mahan Singh & Ors.

This appeal by the plaintiff/appellant is directed against the judgment and decree dated 1.10.1984 passed by the learned courts below vide which suit for possession filed by the plaintiff/appellant stands RSA No.497 of 1985 2 dismissed. The plaintiff/appellant filed a suit for possession on the pleadings that the plaintiff is owner in possession of one khola with Sehan shown as Ka, Kha, Ga, Gha, Cha, Chha and Ja in the site plan attached with the plaint situated in village Machhaunda, Tehsil Ambala from the time of his ancestors. The portion of the site was said to have been purchased by Lekhu Ram and Nathu Ram sons of Pandit Ram Parkash who were related to him being his real uncles for Rs.99/- (Rupees ninety nine only) vide sale deed dated 21.11.1907 registered on 23.11.1907. After the death of Lekhu Ram and Nathu Ram, the plaintiff inherited their share. The case of the plaintiff was that the defendants on 6/7.7.1975 took forcible possession of the property in dispute and constructed two rooms. On 8.7.1975 when the plaintiff returned to the village and asked the defendants to vacate the illegal encroachment they refused to do so. Plaintiff, therefore, filed a suit for possession on the basis of title. Defendants contested the suit and filed written statement by controverting the allegations of the plaintiff, and asserted that they are in possession of the property in dispute for the last 20 years. That the plaintiff had no right, title or interest in the property. It was the stand of the defendant/respondents that Khurlis, kitchen, and boundary walls belonging to the defendants existed in the property in dispute. When it became outdated they renovated it in 1974 to the knowledge of the plaintiff/appellant. The plaintiff did not raise any objection. Suit was said to be not properly valued for the purposes of court fee and jurisdiction. RSA No.497 of 1985 3 On the pleadings of the parties, learned trial court framed the following issues:-

1. Whether the plaintiff is the owner of the site shown by words Ka, Kha, Ga, Gha, Cha, Chha, Ja, as alleged in para No.1 of the plaint? OPP

2. Whether the suit is properly valued for the purpose of court fee? OPP

3. Relief. On issue No.1, learned trial court found that though a positive stand was taken that portion of the property in dispute was purchased by Lekhu Ram and Nathu Ram sons of Ram Parkash for Rs.99/- (Rupees ninety nine only) through registered sale deed dated 21.11.1907 but the plaintiff did not produce the copy of the sale deed or copy of mutation showing that Lekhu Ram and Nathu Ram were the owners of the portion of the property in dispute. Plaintiff further failed to prove that he inherited the property. Learned trial court, therefore, held that the plaintiff/appellant has withheld the best evidence and presumption was drawn against him. Learned trial court further held that in order to prove the ownership plaintiff/appellant had examined PW 3 Vashisht Muni, PW 5 Sita Ram, PW 6 Gainda Ram besides himself as PW 7. The learned trial court found that witnesses of the plaintiff stated that there was a kacha street which led to his house and towards north of the street and that whole of the land was purchased by Karam Singh, father of Maha Singh, defendant No.1. He also admitted that the land was in possession of Karam Singh and RSA No.497 of 1985 4 Bishan Singh since 1946. That Thakar Dass, plaintiff did not possess any portion of suit land since 1946. There was also evidence on record showing that the defendants had constructed house in the year 1974. He further deposed that panchayat had brick lined the street in the year 1973. The street was pucca street. The learned trial court, thus, came to the conclusion that even according to the witnesses produced by the plaintiff did not prove that property in dispute was owned by him. Similarly, PW 5 could not tell the age of the disputed property nor he could tell whether the disputed property was purchased by the plaintiff or it was his ancestral property. The learned trial court found that the PW 6 was interested witness, being Purohit of the plaintiff. His statement was also not believed as it did not tally with the pleadings. The learned trial court found that version given by the witnesses of the plaintiff was contrary to the case set up by the plaintiff/appellant. The learned court found that the statement of the plaintiff regarding his ownership was controverted by DW 1 Maha Singh, DW 2 Sampuran Singh, Sarpanch of the village, DW 3 Harbans Lal and DW 5 Mahinder Singh. Sampuran Singh, Sarpanch of the village deposed that the property was in possession of Maha Singh since 1947. It was also proved that no objection was raised by the plaintiff when the construction was raised by the defendants over the disputed property. Plea of the plaintiff/appellant that as the defendant had failed to prove their case and presumption was required to be drawn in favour of the plaintiff, was negatived by the learned trial court, in view of the settled law that the RSA No.497 of 1985 5 plaintiff has to stand on his own legs. The learned trial court found that documents placed on record by the plaintiff/appellant were not relevant or connected to the property in dispute, as the boundary mentioned in the gift deed Ex.P.3 did not coincide with the property in dispute, which could prove the ownership of the plaintiff. It was held that the plaintiff had failed to prove his ownership. Issue No.1 was decided against the plaintiff/appellant. In view of the findings recorded, the suit was ordered to be dismissed. In appeal, findings recorded by the learned trial court had been affirmed and the appeal was also dismissed. Learned counsel for the appellant contends that this appeal raises the following substantial question of law for consideration by this court:

1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of oral and documentary evidence and thus perverse? In support of the substantial question of law referred to above, learned counsel appearing on behalf of the appellant contended that the learned trial court wrongly non-suited the plaintiff/appellant by misreading the sale deed Ex.P.16 which pertain to the purchase of the property in Begampur. The contention of the learned counsel for the appellant was that the property in dispute is situated in village Machhaunda. There was no RSA No.497 of 1985 6 village by the name of Mauja Begampur where the property was situated. In fact, it is a Patti of same village. It is also the contention of the learned counsel for the appellant that the learned courts below have not taken into consideration copies of sale deeds produced by the appellant which proved beyond doubt that the plaintiff/appellant was the owner of the property in dispute and was entitled to relief claimed. However, on consideration I find no force in the contentions raised by the learned counsel for the appellant. It would be clear from the concurrent finding of fact recorded by the learned courts below, that the plaintiff/appellant has been non-suited for the reason that stand taken by him was, that he had inherited the property from his uncles Lekhu Ram and Nathu Ram, who had purchased this property by way of sale deed dated 21.11.1907. The learned courts found that the plaintiff/appellant failed to produce the copy of sale deed or any document showing the ownership of Lekhu Ram and Nathu Ram from whom he was claiming inheritance. The learned courts also found that oral evidence led by the plaintiff/appellant in support of his ownership could not stand the test of cross-examination, and was found to be not believable. The statements of the witnesses were found to be contrary to the case pleaded and set up by the plaintiff/appellant. It cannot, therefore, be said that the judgment and decree passed by the learned courts below is the outcome of misreading of evidence or that the documentary evidence led has been misread or RSA No.497 of 1985 7 misconstrued. The substantial question of law is answered against the appellant/plaintiff. Concurrent finding of fact recorded on appreciation of evidence are not open to challenge in the regular second appeal under section 100 of the Code of Civil Procedure. No merit. Dismissed.

17.02.2010 (Vinod K.Sharma) Judge