RSA No242of v. Lakhi Ram and anot her

defendant sint endedt o forcibly occupy t he disput edsit e and wit h t heir own propert yabut t ingit Hence t he SUit Suit has been resist ed by t he defendant s I n t heir writ t en st at em ent t he defendant shave assert edt hat t heyare in of t he Sit e in disput efor m ore t han 35 years and t heyhave becom e it s owners by way of adverse I t has been furt her allegedt hat t he plaint iffhas no concern wit h t he sit e in disput eand t he alleged sale deed in his favour is only a paper t ransact ionand not binding upon t heir right sTheyhave also denied t hat Parm al Singhand ot hers from whom t he plaint iffclaim ed t o have purchasedt he Sit e ul disput eand t hat t he Slt e in disput ewas t heir ancest ralpropert y The defendant shave also raisedprelim inaryobj ect ionst hat t he plaint iffhasno cause of act lon t hat t he plaint iffis est oppedSom filingt he present suit by his act and conduct t hat t he SUlt 1S barred byprinciplesof res j udicat at hat t he suit is not properly valued for t he purposes of court fee andj urisdict iont hat t he suit is not m aint ainablein t he present form I t has also been allegedt hat t he Sit e lll disput ealongwit ht he som e ot her propert y by Mangali Ram fat her of t he defendant s from cert ain personsnam ed 10 prelim inaryobj ect ionNo 12 and t hat since t hen t he defendant sare in possessionoft he suit land llhe learnedt rial Court fram edt he followingissuesl 1 Whet her t he plaint iffis owner in possession of GHER in disput eas allegedifso t o what effect 20PP 2 Whet her t he suit has not been properly valued for t he purposesofcourt fee 2OPD KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh 3 Whet her t he plaint iffhas not t he propert yin quest ionifso it s effect 2 OPD filed t he correct sit e plan of JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 70 RSA No2420f 1990 e4 3 6J e 4 Whet hert he earlier suit filed by t he plaint iffregardingt he suit propert yhas already been dism issed20PD 5 Whet hert he suit is hlt byt he 6 Whet her t he suit is not m aint ainable in t he present form 20PD 7 Relief 0 C I C I Z r 08 OO 7 Z The part ieshave led t heir respect iveevidence on t he aforesaid 1SSues and aft er t he sam e and hearingt he leam ed counseI for t hepart iest he t rial Court decreedt he suit oft he plaint iff Feelingdissat isfied wit h t he j udgm entdat ed 83 1989 t he plaint iffpreferredappealbeforet he First Appellat eCourt The said appeal was allowed by learned Dist rict Judge Bhiwani vide j udgm entdat ed 1311990 and t he suit of t he plaint iffst ood dism issed Feelingdissat isft ed wit h t he j udgm entdat ed 13 11990 t he have preferredt hepresentregularsecond appeal I have heard learned counsel for t he part iesand have gone t hrought he record soft he case Learned counsel for t he has subm it t edt hat following subst ant ialquest ionsoflaw have arisen in t he present appeal 1 Whet her sale deedAnnexureI l is adm issiblein Evidence as relied by t het rial Court 2 2 Whet her Evidence beyondpleadingsis adm issible 9 3 Whet her Appellat eCourt has m isread t he pleadlngs t he beyondpleadings9 and wrongly relied t he evidence KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh 4 Whet her pleaofadverse possessionis perm issiblein t he fact s and circum st ancesoft he case 2 JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document C 0 C I C5 I Z m r I a5 7 Z 71 RSA N02242 of 1990 4 0 e 5 Whet her Adverse 1S proved in t he case wit houtany speciflcpleadingc Evidence on record2 I t is cont ended t hat plaint iffhas provedt he sale deed in his favour Bot h t he Court s below have not disput edt he fact t hat execut ion of sale deed ExPl in favour of t he plaint iff The leam ed t rial Coun aRer t he evidence on file t hat t he plaint ifs owner t he suit propert yin view oft he sale deed dat ed 1221982 in his favour The First Appellat eCourt has also ret um eda findingt hat sale deed ExD1 t o Dm 7 do not relat e t o t he land in disput eHowever Appellat eCourt t o t he effect t hat defendant has becom e owner t he Sndingof t he First oft he suit propert yby way of adverse is absolut elywrong The First Appellat eCourt has m isreadand t he evidence regarding t he defendant over t he suit propert y The plea of adverse possesslon can only be t aken if t he defendant adm it t ed t he plaint iffas Since t he defendant shave not adm it t edt he plaint iffasowner oft he suit propert yand as such a pleaofadverse could not be fact ually correct I t is subm it t ed t hat t he First AppelI at e Court has m erely accept edt he appeal on t he groundt hat plaint iffhas failed t o prove t he ownership of vendor of plaint if I t is subm it t ed t hat suit propert ywas ancest ralpropert yofvendors Learned counsel for t he appellant shas furt her subm it t ed t hat reasoned j udgm entgiven by t he t rial Court vide j udgm entdat ed KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh 83 989 has been set aside by t he First Appellat eCourt wit hout m eet ingt he point sgivenby t he t rial Court That approachoft he First Appellat eCoun JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 72 RSA N02242of 1990 5 C as perverse Learnedcounsel for t he t her subm it t ed t hat t he m ain ground for accept anceof appeal by t he First Appellat eCoun 1S t hat t he earlier suit was dism issed as wit hdrawn The earlier suit was m erelyfor perm anentinj unct ionand t hat was wit hdrawn as t hreat of was over The second suit for perm anentinj unct ionon fresh t hreat is m aint ainable in view of aut horit yRanj it Sin VSe Gurnam Singh1998 131PLR 749 Learned counsel for t he has support edt hej udgm ent of t he First Appellat eCourt and subm it t edt hat t he said Court has givena sound reasoning for dism issingt he SUit of t he plaint iff The High Court could not int erfere in t he finding of t he First Appellat eCoun unless t he sam e are perverse in view of ApexCourt aut horit yln Mst Suani VSe Ram eshwar as under Das Si Anr 2006141RCR 1Civill 319 in 25 held m C 0 C C5 I Z C I 08 Z 25 I t is not wit hin t he dom ain of t he High Coun t o invest igat et he groundson which t he findings were arrived at byt he last court of fact I t is t rue t hat t he lower appellat ecourt should not ordinarilyrej ectwlt nesses accept edby t he t rial court in respect of credibilit ybut even where it has rej ect ed t he wit nessesaccept edbyt het rial court t he sam e is no ground for int erference 111 second appeal when it is found t hat t he appellat ecourt has given reasons for doingSO I n a KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh case where from a given set of circum st ances t wo int erference are possibleOne drawn by t he lower appellat e JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 73 a RSA No2242 of 1990 7 6 1 COUI t lS binding on t he HighCourt in second appealAdopt ing anyot her approachis not The HighCourt cannot subst it ut eit s opinion for t he opinionoft he Orst appellat ecourt unless it is found t hat t he conclusions drawn by t he lower appellat ecourt were erroneous beingcont raryt o t he provisions of law applicable or it s set t led posit ionon t he basis of pronouncem ent sm ade by t he Apex Court or was based uponinadm issibleevidence or arrived at wit hout evidence97 So far as aut horit yMst e Sueanis case supral 1S concerned t hat case it has been held t hat t he flndingof lower Appellat eCourt should not be int erfered by t he HighCourt in second appeal unless it lS found t hat t he conclusion drawn by t he Lower Appellat eCourt erroneous beingcont raryt o t he m and at oryprovisionsof t he set t led posit ion law or 1S agalnst on t he basis oft he pronouncem ent sm ade byt he Hone Apex Court or was based upon inadm issible evidence or arrived at such conclusion wit hout any evidence I n t he present case aut horit yMst e Suoanis case I supral will render any helpt o t he case of t he t he finding of First Appellat eCourt regarding of defendant s 1S based upon inadm issible evidence and passedonlybyignonng t he basic principles of laWe The ingredient of adverse possession should be proved The defendant shave failed t o prove t heir possession over t he suit propert ym uclless adverse possession 0 0 0 I 9 Z r I 08 7 Z is set t led law t hat piaint iffhast o prove his own case Mere execut ion of t he saie deed ExP does not prove t he ownership of I t KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and t he integrity of this document 74 RSA No22420f 1990 1d 7 C 0 C I C I Z 0 I a5 r 7 Z plaint iffThe First Appellat eCourt has right lyheld t hat since t he plaint iff has failed t o prove t he vendor oft he plaint iffwere owner and in possessiOll of t he suit propert yand as such no valid t it le is beingconveyedin favour of t he plaint ift The First Appellat eCourt has right lyheld t hat defendant shave becom e owners of t he suit propert yby way of adverse as t hey are in 3040 of t he suit propert y for t he last m ore t han I have given m y t hought fulconsiderat ion t o t he rival subm issionsm ade bylearnedcounsel for t he part iesand have gone t hrough t he record soft he case llhe plaint iffhas flled suit for perm anentinj unct ion t he defendant sfrom t aking Previouslyplaint iffhadalso filed by force alongwit h ot her m em bers a suit for inj unct ionand t he said suit was dism issed in default The applicat ionfor rest orat ion of t he said suit was also dism issed in default The leam ed counsel t he appellant has subm it t edt hat second suit for inj unct ionis not m aint ainablebut in view of aut horit y Raniit Sinehs case supral second suit inj unct ion1S m aint ainableas every fresh t hreatgivingt he new cause of act ion However in t he said ruling it has been held t hat indeed second suit for declarat ion is barred under Order 9 Rule 90ft he Code of Civil Procedure I t has been held by t he Honble Apex Court t hat in case t he suit was not decided on m erit s t he principles of res j udicat awill not operat e However t he second SUit cannot rely upon t he weakness of t he case of t he defendant The t rial CouM I t is set t led law t hat plaint iffhas t o prove his case and JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document would be barred KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh 75 RSA No242of 1990 8 r 0 C I C5 Z 08 r 7 Z has decreedt he suit oft he plaint iffrelyingupon t he sale deed ExP1 but t he First Appellat eCourt has accept edt he appealholdingt hat plaint iffhas failed t o prove t he ownershipoft he vendors The st and t aken by t he plaint iff 1S t hat t he propert yof t he vendors was ancest ral and on t hat account no evidence was The First Appellat eCourt ret urned a definit e flndingt hat Since vendor oft he plaint iffwere not provedt o be t he owners oft he suit propeny as such t heycannot convey any t it le in favour of t he plaint iff That beinga findingoffact does not call for any int erference Learned counsel for t he could not point out as t o how t he Appellat eCourt has m isread t he pleading sand how t he t he First Appellat eCourt has relied upon t he evidence beyondpleadingsregarding t he ownership and of t he plaint iffI t 1Sa Slllt for inj unct ionand t he plaint iffhas failed t o prove his ownership and possessionas such t heyare not ent it led t o claim any relief againstt he defendant s However t he finding of t he t he First Appellat eCourt t o t he effect t hat defendant s have becom eowners oft he suit propert yby way of adverse possession does not sust alll t he t est of legalscrut inyThe suit propert yis lying vacant I t is flndingof fact recorded by t he t he First Appellat eCoun t hat defendant s have failed t o prove t hat by sale deedsExDl t o D7 t heyhave t he suit propert yThe suit propert yis lying vacant I t is set t led law t hat vacant plot would be deem edt o be in possession of t he owner To prove adverse a part yhas t o prove t hat t heyrem ainedin t he suit propert y wit h t he knowledge of t he real owner wit hout any for a cont inuous period of m ore t han 12 years which is a KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 76 RSA No2242of 1990 9 e 7 0 CO I C Z a 08 r10 V Z CL st at ut oryperiodThe First Appellat eCourt has ret urned t he Sndingof adverse of t he defendant in a casual m anner ignoringt he basic of law Mere an adj oiningor anot her propert ynear t he suit land does not prove t he oft he plaint iff The approach of t he t rial Court in ret um ingt he finding of adverse in favour of defendant sis againstt he law and as such t hat finding cannot be sust ained What t o t alk of adverse t he defendant shave failed t o prove t heir t he suit propert y I n view of t he above discussion t he subst ant ial quest ions NosA and 5 raised byt he st and ret um ed againstt he and in favour oft he appellantSo t he finding about t he of t he defendant sover t he suit propert yand t he Ondingsof t he First Appellat eCourt t hat t he defendant shave becom e owner of t he suit propert ybyway of adverse st andsset aside and it is held t hat t he defendant shave failed t o prove t heir t he suit propeny Now revert ingt o t he case oft he plaint ifft heyhave also failed t o prove t heir ownership and t he suit propert y The sale deedEx has been right lynot relied upon byt he First Appellat eCourt as t he plaint iffhas failed t o prove t he fact t hat forat hers of t he vendors of t he plaint iffwere owners in oft he suit propert y I n view of t he above discussion t he subst ant ialquest ions of law Nol t o 3 raised by t he appellantst and answeredagainstt he appellant and t he appeal st andsdism issed However in t he peculiar fact s and circuinst ancesof t he t he part iesare left t o best t heir own KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh cost s JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 77 RSA No22420f 1990 1 10 A copy of t his j udgm entbe sent t o t he t rial Court for st rict 2010 July SV 1 1 JUDGE j 0 0 C I C I Z r I 08 Z 14t l C 114 KUMAR SURESH SHAM LAL 2012.05.19 09: 42 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document