R.L Anand, J.:— The appellants are the legal representatives of unsuccessful plaintiff Bishna and they have filed the present appeal and it has been directed against the judgment and decree dated 6.2.1979 passed by the Additional District Judge, Karnal, who accepted the appeal of the defendants Teja and others by setting aside the judgment and decree of the trial Court dated 15.2.1975 and dismissed the suit for permanent injunction of plaintiff Bishna, now represented by Bhan Singh and others.

2. Brief facts of the case are that Bishna plaintiff (deceased) filed a suit for permanent injunction that the defendants be restrained from interfering in his possession over the Bara in question, which was allegedly owned and possessed by him from the times of his ancestors and over which he had been putting his heap of rubbish, which was lying there at the time of the institution of the suit. The plaintiff alleged that he was the owner in the Shamilat Deh Abadi Deh. He was one of the proprietors of the village. He was enjoying the possession over the Bara in dispute and that the defendants wanted to interfere in his possession but they had no right to do so. Hence the suit.

3. The suit was contested by the defendants-respondents on the plea that Bishna was neither the owner nor in possession of the Bara, rather the defendants were the owners and in possession. Further it was pleaded that the suit of the plaintiff Bishna was not maintainable in the present form.

4. On the above pleadings of the parties, the trial Court famed the following issues:—

(1) Whether the Bara in dispute is owned and possessed by the plaintiff? OPP.

(2) Whether the suit is not maintainable? OPD.

(3) Relief.

5. The parties led oral and documentary evidence in support of their case and vide judgment dated 15.2.1975 the trial Court held that the plaintiff is in possession of the Bara in dispute. All the issues were decided in favour of the plaintiff and the suit was decreed. The relevant findings of the trial Court are contained in para Nos. 13 and 14 of the judgment, which I would like to reproduce for the purpose of appreciation of the controversy in this suit.

“13. In the evidence it has appeared that the parties descend from the common ancestor and this property was sometime joint of the parties. There is no plea by either side on the lines of these facts. It has no bearing on the merits of the case and so that part of the evidence need not be discussed.

14. In the light of the discussion entered into above, I hold that the plaintiff has been successful in proving his possession over the suit property. His title to it flows from that possession. The defendants have been unable to disprove the case of the plaintiff. This issue is therefore concluded in favour of the plaintiff and against the defendants.”

6. Aggrieved by the judgment and decree aforesaid the defendants filed the appeal before the Court of Additional District Judge, Karnal, who vide the impugned judgment and decree dated 6th February, 1979 allowed the appeal and set aside the judgment and decree of the trial Court and the suit of the plaintiff represented by his legal representatives was dismissed. The reasons given by the first appellate Court are contained in para No. 9 of the judgment, which is reproduced as follows:

“The learned trial Judge was conscious of the fact that in such like cases it is the possession which governs title, but still he observed that the possession has to be determined on the basis of various acts of user. According to the trial Court, the placing of rubbish on the property by the plaintiff was sufficient act of possession, which therefore, entitled him to the decree. The trial Court observed in paragraph 11 of the judgment that in village Baras are used for purposes like storing of storing of rubbish, manure and tethering of cattle and these acts of user indicate one's possession over the particular plot. I am afraid this reasoning of the trial Court is not sustainable in law. In Mohd. Amin Khan v. Balanda, AIR 1929 Lahore 71, it was held that an owner of land cannot be said to be out of possession so as to disentitle him for an injunction merely because the defendant collects cattle on the land or fixed mangers or pegs or erects a platform thereon. Similarly in Nand Lal v. Lahri, AIR 1929 Lahore 34, it was observed that where evidence as to possession is conflicting Court should rely on the presumption that possession follows title in the case of land that was vacant before dispossession occurred. The view of the trial Court, therefore, that by placing of rubbish on the land in suit, the plaintiff would be deemed to be in possession of the land is unsustainable and has to be set aside.”

7. This time aggrieved by the judgment and decree of the first appellate Court, the plaintiffs have come in the present appeal, praying that the judgment and decree dated 6th February, 1979 be set aside and that of the trial Court be restored and the suit of the plaintiff be decreed.

8. I have heard the counsel for the parties and with their assistance have gone through the record of this case and I am of the considered view that this appeal is devoid of any merit, as the plaintiffs have failed to prove their established possession of the Bara in dispute on the date of the institution of the suit, which was instituted in the month of March 1973. The short point involved in this appeal which requires determination of the High Court, is whether the plaintiff or his legal representatives have been able to prove their possession over the Bora in question or not. The onus to prove issue No. 1 was upon the plaintiff. No doubt, if the plaintiff failed to prove his ownership over the Bara in question still he was entitled to get a decree for injunction on the basis of the established possession. The evidence, which has been led by the plaintiff was so unsatisfactory that it has to be concluded that by mere user in the shape of throwing rubbish does not establish the possession of the plaintiff, who has come to the Court to claim the injunction. 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 his possession with the intention to retain it by excluding others over the Bara in question. The plaintiff in this case has miserably failed to establish his ownership by leading any documentary or oral satisfactory evidence. Even otherwise the oral evidence regarding possession is too weak, which may be relied upon order to establish the possession. P.W.5 Bishna, when appeared in the witness-box, categorically stated that the property in question was situated in the Abadi and that it is a part of the Shamilat Deh. Also it is admitted by Dassa Lambardar (P.W.2) that the Bara is lying vacant. The case set up by the plaintiff in the trial Court was that he had been putting rubbish/refuse of the house in the Bara and, therefore, it should be inferred that the Bara in question was in his established possession: In my opinion, while dealing with the type of property such as Bara in dispute, the act of putting rubbish or refuse of the house is not enough.

9. Realising this difficulty, learned counsel for the appellants submitted that the evidence of possessions should be inferred when it has come in evidence that the plaintiff has filled the foundations around the property in dispute. This argument is again devoid of any merit. Any subsequent act, which has come during the pendency of the suit would not establish the possession of the individual litigant on the date of the institution of the suit. It has been categorically admitted by Bishna (P.W.5) in his examination-in-chief that he filed the foundations only 10/11 months earlier when he was making his statement on 6.5.1974 The first appellate Court has rightly discarded the statements of P.W.1 and P.W.5 because these witnesses only deposed that they used to throw rubbish over the Bara in question. Apart from that there was no significant act which had been performed by the plaintiff to assert his possession. Even. Munna (P.W.3) admitted in his cross-examination that the villagers had been throwing their heaps and rubbish over the Bara in question and over the Shamilat Deh. This evidence is not enough to hold the possession of the plaintiff, as rightly remarked by the first appellate Court and I am not inclined to reverse the findings of the first appellate Court.

10. Learned counsel for the plaintiff-appellants has relied upon an authority of this Court reported as Gurmeet Knur v. Surjit Singh, 1989 PLJ 55. This authority is not applicable because the lis is not between the co-sharers nor it is established by any documentary evidence, muchless oral satisfactory evidence, that the possession over the Bara of the plaintiff on the date of the institution of the suit was exclusive. Learned Counsel for the appellants also relied upon Hukam Singh (deceased) now Rep. by his L.Rs v. Sh. Tara Singh, 1992 PLJ 268, and submitted that once the possession of the plaintiff over the Bara in question is proved in whatever capacity, he is entitled to the enjoyment of the Bara and cannot be dispossessed except in due course of law. The primarily ingredient in this case regarding the established possession of the plaintiff is missing. Weak evidence of user cannot take the place of possession. There is no dispute about the proposition of law that even a person in wrongful possession is entitled to protect his possession against the entire world except the true owner. In the case in hand the evidence of possession is weak and cannot be acted upon. The counsel for the appellants also relied upon Sadhu v. The State of Haryana, 1992 PLJ 534. The cited case was a case of mortgage and the mortgagee was in established possession of the property mortgaged, with him and it was not redeemed by the mortgagor for the last more than 38 years. The mortgagee failed to prove that he had become the owner of the property by adverse possession or by prescription, but the Court found that such mortgagee was in possession of the property. In those circumstances the possession of such mortgagee was protected. Here is not the case like that. I have already stated above that in order to succeed in such like cases it is the fundamental and primary duty to the plaintiff to prove his possession on the date of institution of the suit, otherwise he will not be entitled to any injunction on being out of possession. No document of title has been proved by the plaintiff from which an inference of possession could be drawn in his favour. Rather the Bora is in the Abadi and it vests in the Gram Panchayat being Shamilat Deh, and could be used by the residents of the village at large.

11. Consequently, I affirm the judgment and decree of the first appellate Court and I do not see any merit in this appeal, which is hereby dismissed with no order as to costs.

Appeal dismissed.