Mai Dayal (Deceased) By Lrs. v. Khushi Ram (Deceased) By Lrs.

V.K Bali, J.:— Challenge in this regular second appeal is to the judgment and decree passed by learned Additional District Judge, Rohtak, dated 8.9.1980 While accepting the appeal, learned Additional District Judge, Rohtak, set aside the judgment and decree dated 27.5.1980 rendered by Subordinate Judge, vide which suit of plaintiff for permanent injunction restraining defendants from interfering in the peaceful possession of plaintiff over Gher situated at Khand Mandi, Meham, District Rohtak, was dismissed.

2. Briefly put the case of plaintiff-respondent (hereinafter referred to as plaintiff) is that he is owner in possession of Gher situated at Khand Mandi, Meham, District Rohtak, details whereof have been given in para No. 1 of the plaint, which was purchased by him on 30.8.1977 from Amar Nath Mahajan vide registered sale deed, registered on even date. He constructed boundary walls on the said plot in February, 1978 and is using the same as owner in possession. Defendants-appellant (hereinafter referred to as ‘defendants’) without any right, title or interest in the said Gher were interfering in peaceful possession of the plaintiff over the said Gher and have also placed some bricks on 16.5.1978 with evil design to take possession of the same. When requests made by him brought no result, he filed suit for the relief, as already indicated above. The matter was contested by defendants, who in the written statement pleaded that boundaries of Gher had been given wrongly and that Amar Nath Mahajan had no right, title or interest in the Gher and, therefore, question of selling the same to the plaintiff does not arise. Further, the sale deed relied upon by the plaintiff was a sham document and as such was not binding upon defendants. They pleaded that they were actually owners and in possession of the Gher in dispute and that their bricks were lying at the spot for the last so many years. Pleadings of the parties gave rise to the following issues:—

“(1) Whether the plaintiff is the owner in possession of the gher in dispute? OPP

(2) Whether the plaintiff has no locus standi to file the present suit? OPD

(3) Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction? OPD

(4) Whether the defendant is entitled to special costs under Section 35-A CPC?

(5) Relief.”

3. After resultant trial, the learned Subordinate Judge, vide his judgment and decree dated 27.5.1980, dismissed the suit leaving parties to bear their own costs. Aggrieved from that judgment and decree, appellant-plaintiff came up in appeal with the result already indicated above.

4. Learned counsel representing appellants vehemently contends that no valid title could pass to the plaintiff on the dint of sale deed, Ex. P-1, as Amar Nath, said to be vendor of the property in dispute, could not prove himself to be owner of property in dispute and if that be so, the finding of the learned trial Judge that plaintiff could not prove himself to be owner of the property in dispute could not be reversed by the learned appellate Court. The contention of learned Counsel appears to be attractive but when the same is examined in the light of the evidence recorded in the case, it pales into insignificance. True, insofar as Amar Nath is concerned, when examined as PW-2, stated that his grand-father had purchased the land in dispute from the Government for which no registered deed was given to him. He further went on to state that document of title of Gher in dispute, if any, might be in possession of his uncle, who was an Advocate and has since died and, therefore, no title deed came on record of the case to show that Amar Nath was himself owner of the property in dispute yet when other oral and documentary evidence is examined, sale deed, Ex. P-1, appears to be a document conferring valid title on the plaintiff. Plaintiff, who appeared as his own witness as PW-1, stated that he had purchased the Gher in dispute from Amar Nath vide registered sale deed, Ex. P-1, for a sum of Rs. 500/- and that he had raised boundary wall around It. He gave the names of masons, who had constructed boundary wall and also gave the name of the person from whom bricks were purchased. He further stated that he got site plan sanctioned after one month of purchase of Gher in dispute. Amar Nath proved sale deed, Ex. P-1. Son of defendant, Rama, appeared as a witness of plaintiff as PW-3. He was himself arrayed as defendant No. 3 and stated that Gher in dispute had been sold to plaintiff by Amar Nath, who owned and possessed the same and his father and brothers have nothing to do with the Gher in dispute. It is true that son of the defendant No. 1, when cross-examined, admitted that his father had given beating to his wife. But matter does not rest there inasmuch as nephew, PW-5, and cousin, PW-6, of defendants likewise deposited against the defendants and in favour of the plaintiff with regard to ownership of Gher in dispute. Nothing at all has been brought on record to show that these two witnesses, i.e PW-5 and PW-6, were in any way interested in favour of plaintiff or had any enmity with defendants. Suraj Bhan, Secretary, Municipal Committee, appeared and proved the site plan and duly identified the signatures of President of the Committee. Surat Singh, when examined as PW-7, has stated that boundary walls of Gher in dispute were got constructed by plaintiff. As against this, defendant examined three witnesses, namely, Mangli Ram as DW-1, Gulzari as DW-2 and Shambu Nath as DW-3. They were not even able to give correct description of the property in dispute, as has been discussed by the learned appellate Court. The plaintiff had sought a decree of permanent injunction and such a decree can be granted even on the basis of possession over the land. Nothing at all has been urged by learned Counsel that may detract from the findings of the learned trial Court with regard to possession over the property in dispute. That apart, as per Section 110 Page: 823of the Evidence Act, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. Once, therefore, the plaintiff had proved that he was in possession, the onus then shifted to the defendants to prove that plaintiff was not the owner of the property in dispute. What has been stated above, would be fortified from the judgment of this Court in Amrit Lal v. Phool Chand, 1976 PLJ 224.

5. The judgment relied upon by learned Counsel in Municipal Committee, Pehowa v. Harsarup, 2000 (1) RCR (Civil) 402, would not come to the rescue of the defendants, as in the case aforesaid the plaintiff had based his case on site plan sanctioned by the Municipal Committee and was not able to prove as to how he became owner of the property. It was the case of the Municipal Committee that plaintiff had obtained sanction by misrepresentation and in connivance with some employees of the Committee. In these circumstances, it was held in Harsarup's case (supra) that “once plaintiff failed to establish about acquisition of title with respect to site in dispute and managed sanction by misrepresentation, the Committee would have right to withdraw such sanction or to demolish any encroachment made by the plaintiff.”

6. In view of the discussion made above, I do not find any merit in this appeal and the same is hereby dismissed, leaving, however, parties to bear their own costs.

Appeal dismissed.