Punjab-Haryana High Court
Santosh Kaur vs Gurudwara Takhat Shri Kesgarh Sahib on 11 July, 2014
Author: Arun Palli
Bench: Arun Palli
RSA No.3774 of 2012(O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3774 of 2012(O&M)
Date of Decision:11.07.2014
Santosh Kaur
... Appellant
Versus
Gurudwara Takhat Shri Kesgarh Sahib, Anandpur Sahib
... Respondents
CORAM:HON'BLE MR. JUSTICE ARUN PALLI
Present:Mr. Naresh Kaushal, Advocate,
for the appellant.
*****
ARUN PALLI, J. (Oral)
Suit filed by the plaintiff was dismissed by the trial Court vide judgment and decree dated 09.09.2011. The appeal preferred against the said decree also failed and was, accordingly, dismissed by the learned first Appellate Court vide judgment and decree dated 06.01.2012. That is how, the plaintiff is before this Court in this Regular Second Appeal. Parties to the lis, hereafter, would be referred to by their original positions in the suit.
Plaintiff prayed for exclusive possession being owner of plot/khola, as shown by letters ABCD in site plan attached with the plaint with a consequential relief of injunction that defendant be restrained from raising any further construction during the pendency of the suit.
Rajan Kumar2014.07.16 16:29 I attest to the accuracy and integrity of this document Chandigarh RSA No.3774 of 2012(O&M) [2]
In short, the case set out by the plaintiff was that she was the owner of the suit property. It was stated that she had purchased ½ share in the suit property along with some other property, vide registered sale deed dated 14.09.1984, executed by Sodhi Manmohan Singh and Sodhi Kirpal Singh son of Ganga Singh for valuable consideration. The other ½ share was purported to have been purchased by Joginder Singh, husband of the plaintiff, vide registered sale deed dated 12.05.1981 from Niranjan Singh son of Bachint Singh. It was averred that original sale deed dated 14.09.1984 was lying deposited in Punjab National Bank, whereas, original sale deed dated 12.05.1981 was not traceable. Joginder Singh had expired on 31.05.2001 and he bequeathed his property including his ½ share in the suit property in the name of the plaintiff, vide a Will dated 09.05.2001. Thus, the plaintiff became owner of the entire suit property. There have stated to be pucca Well and bathrooms in existence in the said property. Defendant, who was Manager of Gurudwara Takhat Shri Kesgarh Sahib, started holding out threat to forcibly occupy the suit property and raise construction. He even started collecting the material at site and digging foundations. Plaintiff moved an application to the police on 06.05.2004 and also to Secretary, S.G.P.C., Amritsar through fax. But to no avail. The plaintiff claims possession after Rajan Kumar 2014.07.16 16:29 I attest to the accuracy and integrity of this document Chandigarh RSA No.3774 of 2012(O&M) [3] demolition of construction on the expense of defendant.
In defence, the defendant denied the ownership of the plaintiff vis-à-vis the suit property. It was claimed that the suit property was exclusively owned and possessed by the defendant. Site plan filed by the plaintiff was pleaded to be incorrect. Suit premises with pucca Well therein were never sold to the plaintiff by said Sodhi Manmohan Singh and Niranjan Singh, who themselves were never the owners and in possession thereof. The sale deeds were purported to be void and illegal and also they do not confer any right either in the plaintiff or her husband. The Will propounded by the plaintiff was stated to be forged. Pucca small room built on the Northern side of the premises was stated to have been built more than 50 years ago. Three phase electric motor was purported to have been installed by the defendant for taking water of Well.
On an analysis of the matter in issue and the evidence on record, the trial Court arrived at a conclusion that during the course of arguments, learned counsel for the plaintiff contended that the plaintiff was still in possession of the suit property, whereas, the suit itself was filed for exclusive possession as owner of plot/khola shown by letters ABCD in the site plan. Learned trial Court observed that from the evidence and pleadings on record, it seemed that the plaintiff had filed and Rajan Kumar 2014.07.16 16:29 I attest to the accuracy and integrity of this document Chandigarh RSA No.3774 of 2012(O&M) [4] contested the suit half-heartedly. Learned trial Court referred to the complaint dated 06.05.2004 purportedly made by the plaintiff to the Secretary, SGPC, Amritsar (copy Mark C), stating therein that foundations of the plot were being dug by the defendant. Similarly, she lodged a complaint to Incharge Police Post, Anandpur Sahib (copy Mark B) and observed that these documents indeed show that before institution of the present suit, the defendant was in possession of the suit property. However, the entire plaint was silent regarding the fact that the defendant was in possession, whereas, the averments in the plaint was to show that the plaintiff was claiming her possession over the suit property. Thus, the suit for possession itself was not maintainable. The argument being advanced regarding possession of the plaintiff over the suit land was found to be totally beyond pleadings and the trial Court observed that the plaintiff seemed unsure as to what she wanted to claim in the suit. Ownership vis-à-vis the suit property was being claimed on the basis of two sale deeds one, dated 14.09.1984 executed by Sodhi Manmohan Singh and Sodhi Kirpal Singh in her favour and second, dated 12.05.1981 executed in favour of her husband. The plaintiff was claiming ½ share of her husband in the suit property on the basis of his Will dated 09.05.2001, which remained unproved on record. None of the attesting Rajan Kumar 2014.07.16 16:29 I attest to the accuracy and integrity of this document Chandigarh RSA No.3774 of 2012(O&M) [5] witnesses of the alleged Will were examined. It was observed that the execution thereof could not be proved as required under Section 63 of the India Succession Act. Sale deed dated 14.09.1984 (Ex.PX) along with site plan (Ex.PY) was produced on record by way of additional evidence, however no evidence of the sale deed was examined. Sale deed purported to have been executed in favour of the husband of the plaintiff was not produced on record nor any effort was made to prove the same by leading secondary evidence. So much so, Kuldip Singh son of the plaintiff (PW1) tendered his affidavit on 06.06.2006 but subsequently, he did not come forward for the purpose of cross- examination. Thus, his examination-in-chief could not be considered. It was observed that this witness was not given up by the plaintiff and rather she examined Tarlochan Singh her son as PW1 and he deposed in support of the version of the plaintiff as set out in the pleadings and proved the documents. Defendant stated in his cross-examination that he did not have any document of title qua the suit property. It was found that though it was proved on record that the defendant was in possession of the suit property, but it did not hold any title thereof. Resultantly, vide judgment and decree dated 09.09.2011, learned trial Court dismissed the suit.
Being dissatisfied with the said decree, plaintiff Rajan Kumar 2014.07.16 16:29 I attest to the accuracy and integrity of this document Chandigarh RSA No.3774 of 2012(O&M) [6] preferred an appeal. Learned first Appellate Court reviewed the matter in issue, evidence on record and on an analysis thereof found itself in concurrence with the view drawn by the learned trial Court and the findings recorded in support thereof. Learned first Appellate Court reiterated that it was settled law that in case the plaintiff was successful in proving her title qua the suit property then, she would have certainly been found to be entitled to a decree of possession. However, the plaintiff failed to prove her ownership over the suit property. A reference was made to para 5 of the plaint, which showed that the threats were being advanced by the defendant to forcibly occupy the suit property and to raise a construction thereon a week before filing of the suit. This learned first Appellate Court observed would show that the plaintiff was categorically claiming that on the date of filing of the suit she was in possession of the suit property. It was observed that para 7 could not be read in isolation of para 5 of the plaint as para 7 contemplated the consequences of threat as contained in para 5. In other words, if the defendant was successful in forcibly occupying the suit property and raise construction thereon then, the plaintiff had claimed possession of the same after demolishing the construction at the expenses of defendant. This learned first Appellate Court held mean that the plaintiff claimed to be in Rajan Kumar 2014.07.16 16:29 I attest to the accuracy and integrity of this document Chandigarh RSA No.3774 of 2012(O&M) [7] possession of the suit property being owner thereof by alleging that the defendant was holding threats to forcibly occupy the suit property. Therefore, apparently the plaintiff was claiming that she was in possession of the suit property whereas in the appeal she had taken a contrary stand, thus, learned first Appellate Court observed that the trial Court was right in framing issue No.1 and arriving at a conclusion that the plaintiff failed to prove her possession over the suit property vis-à-vis the ownership. Her case was predicated on two sale deeds i.e. dated 12.05.1981 alleged to have been executed in favour of her husband and dated 14.09.1984 alleged to have been executed by Sodhi Manmohan Singh and Sodhi Kirpal Singh in her favour. Plaintiff herself never appeared in the witness-box and PW1 has deposed being her Special Power of Attorney holder. It was observed that as the alleged Attorney holder never acted on behalf of the plaintiff either before or after filing of the suit except as appearing a witness then, it could not be substituted for the plaintiff to depose in the Court. Sale deed 12.05.1981 was not proved on record. A photocopy of the said sale deed was placed on record but no application for leading the secondary evidence was either filed before the learned trial Court or it was stated where the said sale deed was lying. So much so, no witness of the sale deed was examined nor it could be shown the Rajan Kumar 2014.07.16 16:29 I attest to the accuracy and integrity of this document Chandigarh RSA No.3774 of 2012(O&M) [8] vendor of the said sale deed was holding any title over the suit property. Similarly, though the original sale deed dated 14.09.1984 (Ex.PX) along with site plan (Ex.PY) was placed on record, yet no witness was examined by the plaintiff to prove the said sale deed. That being so, the learned first Appellate Court, vide its judgment and decree dated 06.01.2012, dismissed the appeal.
I have heard the learned counsel for the appellant and also examined the judgments rendered by both the Court below.
Learned counsel for the appellant could not point out as to how the findings recorded by both the Court were judicially perverse or contrary to the evidence on record.
In the wake of the position as set out above and the conclusions that have concurrently been recorded by both the Court below, there hardly exist any law, least plausible, to interfere with the decrees under challenge in the present appeal. No question of law, much less any substantial question of law, arises for consideration. The appeal being devoid of merit is, accordingly, dismissed.
(ARUN PALLI)
July 11, 2014 JUDGE
Rajan
Rajan Kumar
2014.07.16 16:29
I attest to the accuracy and
integrity of this document
Chandigarh