Nirmla Devi v. RAKESH KUMAR JAIN, J

This appeal has been preferred by defendant No.2 against the judgment and decree of both the Courts below by which suit of the plaintiff for permanent injunction has been decreed and the defendants have been restrained from interfering in peaceful possession of the plaintiff over the plot shown as ABCD bounded as East – Foundation filled plot of Varinder Kumar etc, West – Plot of Ashok Kumar, North – Street, South – Street. The defendants have been further restrained from putting any type of obstruction in raising construction by the plaintiff in the said plot comprised in Khewat/Khatoni No.388/417 Khasra No.171//17(8-0) situated within the revenue limits of village Karoran, H.B. No.352, Tehsil Kharar, District Ropar, except in due course of law. RSA No.2180 of 2010 (O&M) - 2 - The pleaded case of the plaintiff is that he had purchased a plot measuring 10 marla out of Khasra No.171//17(8-0) for a sum of Rs.30,000/- vide sale deed dated 18.4.1990. Owners of four plots in the same line have constructed their houses and owners of plots on eastern side have filled the foundations of their plots whereas, plot of the plaintiff was lying vacant. A few days back, before filing the suit, plaintiff got his plot demarcated privately as he was planning to raise construction but his construction activities were obstructed by defendant No.1 on the ground that defendant No.2 had entered into an agreement to sell the plot in question to him. On the other hand, case set up by defendant No.2 is that plaintiff is the subsequent purchaser whereas she had purchased the property earlier to him from original owner. On the pleadings of the parties issues were framed and the learned trial Court after appreciating the evidence brought on record by both the parties granted injunction. The first appeal preferred only by defendant No.2 was dismissed by the First Appellate Court with the following observations: - “I have carefully considered the above contentions advanced by learned counsel for the appellant. The above said authorities are on its own facts and are not attracted in this case. There is no dispute regarding the law laid down in the above cited authorities. The present suit can very well be decided on the basis of possession and for granting relief to the party question of title of both the parties is not required to be decided. No doubt, copy of sale deed is not admissible in evidence, but in the present case DW1 Nirmla Devi, defendant RSA No.2180 of 2010 (O&M) - 3 - No.2 in her affidavit Ex.DW1/A has herself admitted that plaintiff Dharamvir Singh had purchased another plot from Smt. Sant Kaur vide Vasika No.303. So, the factum of the purchase of the plot by the plaintiff is not disputed by defendant No.2. The boundaries of the property purchased by both the parties are not mentioned in their respective sale deeds. The possession of the plaintiff over the plot in dispute is half heartedly admitted by defendant No.2 in her written statement. No doubt in the title of written statement defendant No.2 has mentioned the same to be written statement and counter claim but neither any court fee has been affixed on the alleged counter claim nor any specific relief by way of counter claim has been claimed by defendant No.2. So, in substance the written statement and counter claim is to be treated as written statement filed by defendant No.2. For claiming counter claim the party is required to affix court fee on the relief claimed by him or her as in the case of plaint. So, the written statement filed by defendant No.2 cannot be treated as counter claim also and the contention of learned counsel for the appellant in this regard is without any merit. In her written statement defendant No.2 has pleaded that she is in possession of the property which she had purchased from the original owner. So, she is alleging herself to be in possession of the property which she purchased from the original owner i.e. Smt. Sant Kaur but in the sale deed Ex.D1 boundaries of the property purchased by RSA No.2180 of 2010 (O&M) - 4 - defendant No.2 are not mentioned. In her written statement, the defendant No.2 has further pleaded that she reserves her right to file separate suit for mandatory injunction for removal of the illegal construction, if any found on the portion owned by her and also for seeking direction to restore the original position as it was at the time of filing the suit. So, in her written statement defendant No.2 is taking of illegal constructions, if any. She has not specifically alleged that the plaintiff has caused any illegal construction on the suit property after the date of institution of the present suit. Defendant No.2 Nirmla Devi only herself appeared in the witness box and has not produced any other witness who may testify regarding her possession over the plot in dispute either on the date of institution of the suit or afterwards. In her cross- examination, DW1 Nirmla Devi, defendant No.2 stated that she is not having any other evidence regarding her possession over the plot besides sale deed and mutation but as already observed above in the sale deed the boundaries of the plot are not mentioned. The suggestion was put to PW1 Dharamvir Singh, plaintiff that he has forcibly taken possession of plot of Nirmla Devi, defendant No.2. So, this suggestion implies that plaintiff is in possession of the plot in dispute. In her affidavit Ex.DW1/A, DW1 Nirmla Devi, defendant No.2 has no where stated that after the institution of the suit plaintiff took forcible possession of the plot in dispute. On the other hand, she has stated in her affidavit that plot RSA No.2180 of 2010 (O&M) - 5 - is owned and possessed by her. It is not proved if defendant No.2 filed any complaint with the police regarding taking of forcible possession by the plaintiff at any time. Further, a suggestion was again put to PW1 Dharamvir Singh, plaintiff that the room which stand constructed in the plot was constructed by Nirmla Devi. So, this suggestion put to the plaintiff implies that the case of the defendant No.2 is that the room which stand constructed in the plot in dispute was constructed by her but DW1 Nirmla Devi, in her cross- examination stated that there is no room in the disputed plot. PW1 Dharamvir Singh in his affidavit Ex.PW1/A has deposed about her possession over the plot in dispute. His statement finds corroborating from the testimony of PW2 Denial. On the other hand, as already observed above Nirmla Devi, defendant No.2 has not produced any other witness who may testify regarding her possession over the plot in dispute. So, in the above discussed circumstances, no doubt is left that plaintiff is in possession over the plot in dispute. The ld. Trial Court has rightly upheld the possession of the plaintiff over the plot in dispute and rightly passed a decree for permanent injunction. The findings of the learned trial court on issue No.1 in this regard, are correct and are here affirmed.” Again only defendant No.2 is in second appeal. Learned counsel for the appellant has practically reiterated the stand taken before the Courts below but he could not satisfy the Court about her RSA No.2180 of 2010 (O&M) - 6 - possession over the plot in dispute. It has been observed by the First Appellate Court that factum of purchase of plot is not disputed by defendant No.2 and the boundaries of the property purchased by both the parties are not mentioned in their respective sale deeds. The possession of the plaintiff has been admitted by defendant No.2 while answering a suggestion that he is in forcible possession over the plot in dispute and defendant No.2 had nowhere stated that after institution of suit, the plaintiff had taken forcible possession. Thus, once it is proved on record that plaintiff has purchased the suit property by virtue of registered sale deed, which though does not depict boundaries of the suit land nor did the sale deed in favour of defendant No.2 depict the same and possession of the plaintiff was admitted by the defendant No.2, the learned Court below, to my mind, has rightly granted decree for permanent injunction for restraining the defendants from interfering in possession of the plaintiff otherwise then in due course of law. Insofar as the question of counter-claim is concerned, no argument has been raised by learned counsel for the appellant but still it is worthwhile to mention that neither any Court fee has been affixed on the alleged counter-claim nor any specific relief by way of counter-claim has been claimed. In view of the above discussion, I do not find any error in the judgment and decree of both the Courts below to interfere in second appeal as no substantial question of law is involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’). The appeal is, thus, dismissed in liminie, though, without any order as to costs. RSA No.2180 of 2010 (O&M) - 7 -

27.05.2010 Vivek (RAKESH KUMAR JAIN) JUDGE