Narsi & Anr. v. Phakiriya & Ors.

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Ajay Jain, Advocate, for the appellants. Respondents ex parte. L.N. Mittal, J. (Oral) Defendants no. 1 and 2 have filed instant second appeal after plaintiff-respondent no. 1 Phakiriya succeeded in both the courts below. Respondent no. 1 filed suit against the appellants and proforma respondents no. 2 to 4 alleging that plaintiff is in possession of the bara in suit measuring 400 sq. yards lying towards east of his house, for the last 40/45 years and has been using the same for tethering cattle and storing dung cakes. He has also constructed a Chhapper (shed) for storing fodder etc. Defendants have no concern with the suit plot but they wanted to take forcible possession thereof. Accordingly, the plaintiff filed suit for permanent injunction restraining the defendants from interfering in the Regular Second Appeal No. 549 of 2006 -2- possession of the plaintiff over the suit property illegally and forcibly and from taking forcible possession thereof. The defendants, inter alia, pleaded that the suit land belongs to Gram Panchayat and the same has been ear-marked for Harizan Chopal and Guru Ravidas Mandir vide resolution dated 20.12.1993. Allegations of the plaintiff were denied. It was pleaded that the plaintiff himself wanted to encroach upon the suit land without any right to do so. Learned Civil Judge (Junior Division), Hisar vide judgment and decree dated 30.9.2003 decreed the plaintiff's suit restraining the defendants from interfering in peaceful possession of the plaintiff over the suit land and from dispossessing him therefrom except in due course of law. First appeal preferred by the defendants has been dismissed by learned Additional District Judge, Hisar vide judgment and decree dated 25.11.2005. Feeling aggrieved, defendants no. 1 and 2 only have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file including trial court file whereas respondents have been proceeded ex parte in the instant second appeal. After hearing learned counsel for the appellants, I find that following substantial question of law arises for determination in the instant second appeal:- “Whether finding of the courts below that the plaintiff is proved to be in possession of the suit property is illegal and perverse and based on misreading and mis-appreciation of evidence and is legally not sustainable ?” There is only oral evidence led by the plaintiff to prove his Regular Second Appeal No. 549 of 2006 -3- possession over the suit plot. However, the said evidence is not sufficient to establish his possession. The plaintiff has not even alleged that he is owner of the suit plot. The plaintiff has simply alleged his possession over the suit plot for 40/45 years. However, possession over vacant land goes with title. Since the plaintiff has not claimed title or ownership over the suit land, he cannot be presumed to be in possession thereof. The plaintiff has simply alleged that he tethers his cattle in the suit land and stores dung cakes etc. for which he has put temporary shed therein. However, these acts of the plaintiff taken at their face value may at best amount to temporary user of the suit land by the plaintiff but do not prove his established possession. This conclusion finds support from a judgment of this Court in Bhan Singh versus Tej Singh, 1996 PLJ 519. It was laid down in the said judgment that mere acts of user, such as throwing rubbish, placing dung cakes, tethering cattle, installation of pegs may be weak links to say that a particular litigant is using the property but such user has to be secluded separately from the acts of possession, for which overt act is necessary for such litigant to establish that he had been exercising possession with the intention to retain it by excluding others. In the instant case, it is the whole case of the plaintiff that he has been using suit land for tethering cattle and storing dung cakes. The said act would not show that the plaintiff is in established possession of the suit property. Even report of Local Commissioner simply depicts the existence of manure pit etc. in the suit land but the same is not sufficient to prove that the plaintiff is in established possession of the suit land. Courts below have gravely mis-read and mis-appreciated the Regular Second Appeal No. 549 of 2006 -4- evidence by drawing inference of possession of the plaintiff from the suggestions put to him in cross-examination. However, no such inference could be drawn from the cross-examination of the plaintiff in the instant case. It was suggested to plaintiff that he was elected Sarpanch on the condition that he would surrender possession of the land for which ejectment case had also been filed against him. However, the said suggestion did not pertain to the suit land. On the other hand, one Gaje Singh had filed ejectment case against the plaintiff relating to land on which the plaintiff had constructed his house. However, admittedly the suit property is vacant land lying towards east of the house of the plaintiff. Consequently, the aforesaid suggestion and ejectment case related to land underneath the house of the plaintiff and did not relate to the suit land which is vacant land lying towards east of the house of the plaintiff and is separate and independent from the plaintiff's house. Inference of the possession of the plaintiff over the suit property also cannot be raised from the report of the Local Commissioner. For the reasons recorded herein above, I find that finding of the courts below that the plaintiff is proved to be in possession of the suit land is patently perverse and illegal and is based on gross misreading and mis- appreciation of evidence and is therefore, legally not sustainable. Substantial question of law framed herein above is accordingly answered in favour of the appellants and against plaintiff-respondent no. 1. It is held that plaintiff-respondent no. 1 is not proved to be in possession of the suit land. In view of the aforesaid discussion, the instant second appeal is Regular Second Appeal No. 549 of 2006 -5- allowed and judgments and decrees of the courts below are set aside and suit filed by respondent no. 1 stands dismissed. No costs. July 13, 2010 'dalbir' ( L.N. Mittal ) Judge