Punjab-Haryana High Court
Dhoom Singh vs Baisakhi Ram And Ors. on 17 May, 1996
Equivalent citations: (1996)114PLR541
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Unsuccessful plaintiff Dhoom Singh has filed the present appeal and which has been directed against the judgment and decree dated 22.2.1994 passed by Additional District Judge, Jagadhri, who while affirming the judgment and decree of the trial Court dated 24.8.1982 dismissed the appeal of the present plaintiff-appellant considering no merit in it.
2. The brief facts of the case are that Dhoom Singh plaintiff-appellant filed a suit for permanent injunction against Baisakhi Ram and others praying that defendants be restrained from interfering into the exclusive possession of the plaintiff over a Bara marked with letters "ABCD" in the site plan situated in the abadi deh of village Behrampur, tehsil Jagadhri, district Yamunanagar. It may be mentioned at the first outset that earlier Dhoom Singh impleaded Paul Singh P.W. 3 as defendant in this case on the allegations that he too along with other defendants were allegedly threatening the possession of the plaintiff over the Bara. This person so much so filed the written statement in the lower court and resisted the claim of the plaintiff but subsequently Paul Singh was given up by the plaintiff from the array of defendants and was examined as the witness of the plaintiff as P.W. 3.
3. The case of the plaintiff is that the Bara in dispute was previously owned and possessed by his father and after his death he inherited the same and is in possession of the said Bara for the last more than 40 years. He has been exercising the possession over this Bara by placing fuel woods. Besides that he has installed pegs for tethering catties. He parks his carts so much so he has filled the foundations for the construction of his residential house. The defendants have no right title or interest in the said Bara. House of defendant No. 1 Baisakhi Ram is situated on the eastern side of Bara and he is threatening do dis-possess the plaintiff with the help of other co-defendants. Defendant No. 1 wants to carve out a passage through the Bara despite the fact that his house is well connected with metalled road. Defendants were called upon several times not to implement their evil designs but to no effect hence the suit.
4. Notice of the suit was given to the defendants who resisted the claim of the plaintiff. The defendants denied that foundations of the plot in question were ever filled by the plaintiff. Rather this foundation were dug and filled by the Harijan community of the village Bara was given to the Harijan community of the village proprietors for the construction of a Harijan Dharamasala. The defendants denied that the plaintiff was the owner of the Bara. Defendants averred that they have no individual interest in the Bara in dispute but it vests in the Harijan community as a whole and that is why they are interested to protect the Bara in question. So much so, the gram panchayat of village Behrampur has passed a resolution on 9.8.1987 in this connection by which Bara in question was given to Harijan community of village for the construction of Dharamsala. Defendants denied the possession of the plaintiff. Stand taken by the defendants was the plaintiff wanted to tether his catties forcibly over the plot in question and the matter was reported to the police and a compromise was effected by which it was agreed upon that the plaintiff would remove his cattle from the site in dispute leaving the Bara in question for the exclusive use of the Harijan community who are the owners by virtue of the resolution dated 9.8.1987. Earlier Paul Singh P.W. 3 was arrayed as a defendant as stated above. He filed written statement along with other defendants but later on the plaintiff made a statement on 16.7.1992 in the trial Court by which this defendant was given up from the list of the defendants and in this manner his name was deleted. Baisakhi Ram defendant No. 1 died during the course of proceedings in the trial Court and defendants No. 1-A to 1-G were brought on the record as his legal representatives.
5. The plaintiff filed replication to the written statement of Baisakhi Ram, Sat Pal and Puran Chand, defendants No. 1 to 3, respectively in which he reiterated his allegations made in the plaint while denying those of the written statement and from the above pleadings of the parties, the learned trial Court framed the following issues :-
1) Whether the plaintiff is the owner in possession of the suit property, OPP.
2) Whether the plaintiff is entitled for the decree of permanent injunction as alleged, OPP.
3) Whether the plaintiff has no locus standi to file the present suit, OPD.
4) Whether the plaintiff is estopped from filing the present suit by his act and conduct, OPD.
5) Whether the parties have compromised the matter on 29.7.1987. If so, its effect, OPD.
6) Relief.
6. Both the parties led oral and documentary evidence in support of their claims and on the conclusion of the proceedings, issues No. 1 and 2 were decided against the plaintiff. Issue No. 3 and 4 were decided in favour of the defendants. Issue No. 5 was, however, decided against the defendants and finally on the basis of the findings given by the trial Court on issues No. 1 to 4, the suit was dismissed. Aggrieved by the judgment and decree dated 24.8.1992 passed by the trial Court in favour of the plaintiff the first appeal in the Court of learned Additional District Judge, Jagadhri, who affirmed the findings of the learned trial Court vide impugned judgment and decree dated 22.2.1994. Still not satisfied with the decisions of the Courts below, the present appeal.
7. I have heard Shri M.L. Sarin, Senior Advocate on behalf of the appellant and Shri S.K. Bansal, on behalf of the respondents and with their assistance have gone through the record of the case.
8. Assailing the findings of the learned trial Court as well as the first Appellate Court on issues No. 1 and 2, the learned counsel for the appellant submitted that both the Courts below erred in appreciating the evidence on record and irrespective of the concurrent findings given against the plaintiff regarding the possession over the Bara in dispute this Court can make an independent appraisal if the evidence has been wrongly interpreted or appreciated by the Courts below. There is no dispute with the proposition raised by the learned counsel for the appellant but before applying that proposition to the facts in the hand it has to be established by the plaintiff-appellant that the decisions of the Courts below were erroneous and that the Courts below did not appreciate the evidence oral and documentary in the correct manner. Otherwise, the concurrent findings of the fact of the Courts below cannot be interfered with as per the settled law of the land.
9. Now, it has to be seen whether the plaintiff-appellant Dhoom Singh has been able to prove his case or not. The case set up by the plaintiff is that this Bara was previously owned and possessed by his father Sddhu Ram and after his death the plaintiff was in possession of the Bara for the last more than 40 years and he had been exercising his possession over the site in dispute by tethering catties, by installing pegs and so much so he has dug foundations. On the contrary the stand of the defendants is that the Bara in question was earlier the property of the proprietors. It is situated within the abadi of village Brahampur. It vested in the gram Panchayat by virtue of Section 2(a)(4-a) of the Punjab Village Common Lands (Regulation) Act, 1961, as applicable to Haryana and thereafter the gram panchayat gave this Bara to the Harijan community of the village for constructing a Dharamsala and this fact is amply borne out from the statement of Naresh Chand D.W. 5 who proved the resolution Ex. D.W. 5/A. On the contrary it was submitted by the learned counsel for the appellant that his client is claiming injunction which can be granted irrespective of the fact that he has failed to prove the ownership over the Bara in question. The possession of the plaintiff is established and proved on the record and till he is evicted by rightful owner, the plaintiff can protect his possession against the entire world including the defendants except the rightful owner. In order to appreciate the argument of Mr. Sarin, I have to see whether the plaintiff has been able to establish his possession on the date of filing of the suit or not. The plaintiff is relying upon on his own statement, besides the statement of D.W. 5 Naresh Chand and in addition to that the report of local commissioner in order to prove his established possession. I have the occasion to go through the oral and documentary evidence including the report of the local Commission and am of the considered view that the plaintiff-appellant has not been able to prove his possession. Mere use by a resident of village; over a plot in question cannot be equated with possession. A user of a plot has to prove by his overt acts that the disputed site was his possessory title and that he wants to exclude every body from the user of such plot to his advantage. This type of evidence is totally lacking in this case. The plaintiffs has not examined any independent witness of village Brahampur in order to prove that he had been exercising his possession. By merely placing dung cakes or by tethering the catties or by installing pegs or by placing carts, the evidence of possession is not established or complete. On the contrary, it is established on the record from the statement of D.W.5 Naresh Chand, who was the sarpanch of village Brahampur that vide resolution dated 9.8.1987 the plot in question was given to the Harijan community of the village. Meaning thereby that the Harijan community of the village including the defendants became the owner and this plot was given to the community for the construction of Dharamsala. The stand of the defendants is specific in the written statement that they are not claiming over this property in their individual capacity but they are protecting it being the property of Harijan community and in these circumstances it was obligatory on the part of the plaintiff to seek the permission of the civil courts under Order 1 Rule 8 C.P.C. and it was further obligatory and incumbent upon the plaintiff-appellant to sue the defendants in a representative capacity and as it has not been done so, therefore, the suit is liable to be dismissed on this short ground. Be that as it may, I have to see that even if the plaintiff has failed to prove his title over the property in dispute still has he been able to establish his possession so as to claim a relief of injunction or not and my considered reply to this query is in the negative. To continue with my reasons but for the bald statement of the plaintiff, there is no satisfactory oral evidence in the shape of co-villagers who could depose about the established possession of the plaintiff. The counsel for the plaintiff relied upon the statement of Paul Singh, P.W. 3, but in my opinion his statement does not carry much weight on account of his inconsistent conduct. At the point of time he chose to give contest to the plaintiff but later on it appears that he was won over by the plaintiff and became convenient witness for the plaintiff and appeared as P.W. 3. No implicit reliance can be placed on the statement of such a shaky witness who can take convenient and contrary stand from stage to stage of the suit. The counsel for the plaintiff then submitted that from the statement of D.W. 5 Naresh Chand it stands established that the plaintiff is in possession of the Bara in dispute on the date of the institution of the suit and in support of his contention he has relied upon the statement of this witness which was recorded on 16.7.1992. This witness stated "now over the site in dispute the possession of the Dhoom Singh plaintiff is continuing". Therefore, from this statement it cannot be inferred or said or declared that on the date of the institution of the suit, which was instituted somewhere in the year 1984 the plaintiff was in possession. Otherwise also, it is settled law that plaintiff has to stand on his own legs and cannot rely on the weakness of the defence, if any. The case of the plaintiff was specific in the trial Court that earlier this Bara belonged to his father and after his death be inherited the same and now he is in continuous possession for the last 40 years. There is no evidence to establish the possession of the plaintiff during this period. Learned counsel Shri Sarin, then submitted that from the report of the local commissioner it stands established that the plaintiff was exercising his possession and, therefore, his client is entitled to the injunction irrespective of the failure of the title. The record of the trial Court would reveal that on 4.8.1987 Dhoom Singh moved an application averring that he had tethered his catties. Besides that he had placed his fuel woods and other things and has installed the pegs for tethering catties. Moreover, he has filled up foundations for the construction of the residential house. On this application, the learned trial Court vide orders dated 4.8.1987 without issuing notice to the opposite party passed an order to the limited extent giving directions to the Local Commissioner to go to the spot after giving notice to both the parties if possible and to report about the existing position of the land in dispute. As against the directions, the local commissioner vide his report dated 19.8.1987 came to the conclusion that the pegs and foundations etc. belonged to Dhoom Singh plaintiff without recording any statement of any independent person to that effect. The local Commissioner was never called upon to determine the possession of the parties over the site in dispute. He was only assigned the duty for a limited purpose to see the condition of the site in question but it appears that by exceeding his jurisdiction the sanctity of the report of the local Commissioner has been lost and it cannot be read for the purpose of dis-advantage for the defendant-respondents. It is strange that when the plaintiff is asserting his possession for the last 40 years over the site in dispute he has not been able to get a single independent witness from the village who could depose in his favour about the possession. Rather he chose to examine Krishan Lal of village Kail, which is at a distance of about one Kilometre from village Brahampur. The plaintiff must be in possession of some documentary evidence in the shape of receipts when he alleges in the trial Court that he dug the foundation. He must have purchased some building material but strange enough no documentary evidence has been produced on the record to show that the plaintiff ever exercised his possession over the Bara in question by raising any sort of construction in order to construct a residential house.
10. The counsel for the appellant has relied upon an authority of the Hon'ble Supreme Court reported as Mohan Lal and Ors. v. The State of Punjab and Ors., 1971 P.L.J. 338 and submitted that even if it is held that plaintiff was in unauthorised occupation of the Bara in question he was entitled to protect his possession against the entire world except true owner and that he could only be evicted in the manner authorised by law. This authority is not applicable to the facts in hand because the evidence on record is enough to show that Bara in question was given to the village Harijan community. The defendants are also Harijans like the plaintiff and that the transfer of the proprietary rights of the Bara in the Harijan community of the village, an interest has also devolved upon the contesting defendants and they can protect Bara in dispute for their own benefit and for the benefit of the Harijan community of the village. The counsel for the appellant then relied upon Krishna Ram Mahale (dead) by his LRs. v. Mrs. Shobha Venkat Rao, AIR. 1989 Supreme Court 2097 where it was held that if there is an unlawful dispossession of a licensee by licensor before expiry of licence period, such licencee is entitled to restoration of possession notwithstanding that period of licence had expired long back, during pendency of legal proceedings. This authority is again not applicable to the facts in hand. The plaintiff nowhere alleges that he is a licensee over the site in dispute. Moreover, the defendants never admit that plaintiff was inducted as a licencee. Even a licensee is in permissive possession but in the present case possession of the plaintiff has been totally denied and disputed by the defendants. Mere user of a property for a petty long time may be a weak circumstance to establish possession but it can never take the place of established possession as such which has to be proved independently from bare user. The counsel Shri Sarin also placed reliance on M. Kallappa Setty v. M.V. Lakshminarayana Rao, A.I.R. 1972 Supreme Court 2299 and submitted that plaintiff can resist interference from the side of defendants on the strength of his possession as the defendant had no better title than the plaintiff himself and in these circumstances the injunction should be granted against the defendants from disturbing the possession of the plaintiff. This argument is again erroneous because the first ingredient of possession in this case has not been established by the plaintiff by leading cogent or reliable evidence.
11. As against this my attention has been invited to the citation of this High Court reported as Lekh Ram v. Jhandu, (1988-1)93 P.L.R. 699, that in a suit for declaration that plaintiff owner is in possession and permanent injunction restraining defendant from taking forcible possession and that plaintiff failed to prove ownership of the suit land such plaintiff is not entitled to the relief on the basis of the possession alone. The ratio of this authority can be helpful to me in disposing of the controversy in hand. Though an effort has been made by the learned counsel for the appellant to distinguish authority by advancing argument that the defendant in the cited case was not the owner but I am not in agreement with the plea raised by the learned counsel for the appellant. The learned counsel for the respondents also relied upon Ram Niwas v. The State of Haryana and Ors., 1993 P.L.J. 638, and submitted that a trespasser like the plaintiff is not entitled to the protection of the Court and he cannot be allowed to urge once having illegally entered into the possession to say that his illegal possession should be protected. There is force in the submission raised by the learned counsel for the respondents. I have already held above in my discussion that the plaintiff has not been able to prove his established possession on the date of the institution of the suit, the oral evidence is unsatisfactory. The report of the local commissioner is inadmissible to the extent when the local Commissioner had given the opinion against the reference that the material/things observed at the spot belonged to Dhoom Singh plaintiff.
12. In this view of the matter, I endorse the findings of the Courts below on the issue which were decided against the plaintiff and, find no merit in this appeal dismiss the same with no order as to costs.