Punjab-Haryana High Court
Roshan Lal vs Ganpat And Ors. on 1 November, 1999
Equivalent citations: (2000)125PLR39
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Roshan Lal, defendant No. 2 in the trial Court has filed the present appeal and it has been directed against the Judgment and decree dated 18.12.1998 passed by the Additional District Judge, Karnal, who dismissed the appeal of the appellant and affirmed the judgment and decree dated 4.6.1993 passed by the Court of the Additional Senior Sub Judge, Karnal in favour of Ganpat and Jagdish.
2. The brief facts of the case can be noticed in the following manner:-
3. Ganpat and Jagdish, plaintiffs in the trial Court, filed a suit for declaration to the effect that the registered sale deed dated 17.9.1985, Ex.P-5, executed by Nasib Singh, defendant No. 1, in favour of Roshan Lal, defendant No. 2, regarding the plot in question as shown by letters ACDEG and by red colour in the site plan attached with the plaint and as mentioned in the sale deed be declared null and void being not binding upon the rights of the plaintiffs and that the plaintiffs are still owners in possession of the plot in dispute as mentioned in para 3 of the plaint and as shown in the site plan attached with the plaint. The plaintiff also sought an injunction to restrain the defendants No. 1 and 2 from forcibly dispossessing the plaintiffs from the plot in question.
4. The case set up by the plaintiffs was that they were continuing as owners in possession of house No. 185 Ward No. 12 along with plot in front of the said house as shown in red colour and marked by letters ABCDEF for the last 80 years since the time of their fore-fathers. That the plaintiffs had constructed Khor for tethering cattle and had also constructed a Chapper in this plot for the said purpose. There is a Neem tree standing in the plot in dispute belonging to the plaintiffs. A well as also got constructed by the plaintiffs in the said premises about 45 years ago. However, the well has become dry. The plaintiffs closed this well and got a water tap fixed at their own expense and are using the same for their purpose without any hindrance or objection from anybody. It was also alleged by the plaintiffs that there is a Municipal drain on two sides of the said plot, i.e. on the eastern and southern sides, and that the water of the water tap passes through the said Municipal drain on the southern side. In this manner, the plaintiffs alleged that they are owner in possession of the plot in question.
5. It was further alleged by the plaintiffs that defendant No. 1 Nasib Singh sold the plot measuring 12.37 sq. yds. including one Neem tree, Khor and Chapper to defendant No. 2 Roshan Lal vide registered sale deed dated 17.9.1985 and the boundaries of the plot as given in the sale deed have been described in para 3 of the plaint. However, it was stated by the plaintiffs that the defendant No. 1 had no right, title or interest in the said plot as the same formed the subject-matter of the sale deed which was executed in their favour in the year 1932 and, since then, they are Owners in possession of the plot in question and that the sale deed dated 17.9.1985 conferred no right, title or interest in defendant No. 2.
6. It was further alleged by the plaintiffs that Roshan Lal, defendant No. 2, intends to dispossess them from the plot in question under the garb of the sale deed dated 17.9.1985 and in order to achieve that object, the defendant No. 2 had filed a plan in the Municipal Committee, Gharaunda, for sanctioning the same in order to raise construction but objections were raised by the plaintiff as a result of which the defendant No. 2 could not succeed in getting the plan sanctioned from the Committee.
7. Notice of the suit was given to the defendants. Defendant No. 1 Nasib Singh appeared and filed the written statement and alleged that the plaintiffs are not in possession of the suit property and hence they had no locus standi to file the suit. The plaintiffs are estopped by their act and conduct from filing the present suit. The defendant was in possession of the suit property and it was never objected to by the plaintiffs. Defendant No. 1 took the stand on merits that after the execution of the sale deed dated 17.9.1985, defendant No. 2 came into possession of the suit property. Whatever constructed existed on the plot in dispute was made by the defendant No. 2 or by his ancestors.
8. Defendant No. 2 also filed a separate written statement and his stand was on the similar footing as that of defendant No. 1. It was stated by defendant No. 2 that Nasib Singh was the owner in possession of the land in dispute and that a few months prior to the execution of the sale deed dated 17.9.1985, Nasib Singh had surrendered the possession of the plot in question to the brother of defendant No. 2 as licensee and after the execution of the sale deed, defendant No. 2 became the owner and in possession of the property. Defendant No. 2 Roshan Lal was employed in military and in his absence, the possession of the plot in question remained with his brother, father and other members of the family on his behalf. With this defence, the defendant No. 2 prayed for the dismissal of the suit.
9. The plaintiffs, filed rejoinder to the written statements in which they reiterated the allegations made in the plaint by denying those of the written statement.
10. From the pleadings of the parties, the following issues were framed by the trial Court:-
"1. Whether the plaintiffs are owners in possession of the plot in dispute? OPP
2. Whether the sale deed dated 17.9.1985 executed By defendant No. 1 in favour of defendant No. 2 is null and void and not binding on the plaintiffs? OPP
3. Whether the suit is not maintainable in the present form?
4. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD.
5. Whether the suit is mala fide? OPD
6. Relief."
11. The parties led oral and documentary evidence and on the conclusion of the trial, the leaded trial court held that the plaintiffs have been able to prove that they are owners and in possession of the property and that Nasib Singh had no right, title or interest over the property in dispute and in these circumstances, the sale deed dated 17.9.1985 executed by Nasib Singh in favour of Roshan Lal was illegal, null and void. It was held under issue No. 4 that since the plaintiffs were not party to the sale deed dated 17.9.1985, therefore, the court fee of Rs. 25/- has been correctly paid by the plaintiff. Issue No. 5 was also decided against the defendants as a result of which the suit was decreed.
12. Aggrieved by the judgment and decree of the trial Court, Roshan Lal, the present appellant, filed first appeal before the Additional District Judge, Karnal, who for the well detailed reasons in the lengthy judgment dismissed the appeal including two applications moved by the appellant Under 0rder 41 Rule 27, C.P.C.
13. Still not satisfied with the judgment and decree of the first appellate Court, the present appeal by Roshan Lal.
14. I have heard Mr. Sanjeev Gupta, counsel for the appellant and with his assistance have gone through this file, and am of the opinion that the concurrent findings of fact which are based on proper appreciation of evidence by the Courts below, cannot and should not be interfered in appeal when no substantial question of law has been formulated and agitated by the counsel for the appellant.
15. Still, the counsel for the appellant in his zeal to take notice of motion from this Court, has argued from different angles.
16. The first contention of the counsel for the appellant was that the boundaries which have been mentioned in the sale deed dated 6.1.1932, ExiPW-5/1 do not tally with the boundaries as mentioned in the site plan attached by the plaintiff and, in these circumstances, the Courts below fell in error in holding that the plaintiffs are the owners and in possession of the site in dispute. The counsel also submitted that is the basic law of the land-that the plaintiffs have to stand on their own legs and they cannot rely upon the weakness of the defence and even if it is assumed for the sake of arguments that the appellant has not been able to establish his possession on the basis of the sale deed dated 17.9.1985, still the suit of the plaintiffs could not be decreed until and unless they established their ownership and possession over the site in question. It was also submitted by the counsel far the appellant that the courts below have also fell in error when they placed too much reliance on the report of the Local Commissioner and both the Courts committed a patent illegality when they did not take into consideration the affidavit of Nasib Singh, vendee of the sale deed dated 17.9.1985. Some case law was also cited by the counsel for the appellant, which I will deal in the subsequent portion of this judgment. The last contention of the counsel for the appellant was that the first appellate Court illegally rejected the applications of the appellant-defendant under 0rder 41, Rule 27, C.P.C.
17. I have considered all these submissions raised by the counsel for the appellant and still I am of the view that the appellant has not been able to make out any case nor any substantial question of law has been raised or agitated.
18. First of all, will deal with the two applications moved by the appellant under 0.41, Rule27, C.P.C. The first application was dated 5.1.1996 vide which the appellant has sought to produce the record of plaint in civil suit No. 299/84 decided on 8.3.1986 copy of the order passed in the said suit dated 18,3.1986 and affidavit of, Nasib Singh dated 19.3.1987. Second application was moved on 1.12.1997 in which it was mentioned that after the decision of the present suit by the trial Court, a site plan" was, submitted by the plaintiffs in the Municipal Committee for raising construction in their house in which the plot in dispute had been shown as private property and hence it was stated that this fact goes against the plaintiffs.
19. Both these applications were rightly declined. A civil suit was filed by Raj Pal and others against the plaintiffs and the said suit was dismissed as withdrawn. In that suit; there was hardly any statement on behalf of the plaintiff vide which they had admitted that the site in question belongs to Nasib Sihgh. Moreover, this was to the knowledge Of the appellant about the suit which was filed by Raj Pal and, in these circumstances, he could lead some evidence in this regard in the trial court. The application was just made in order to burden the file. The other document which was sought to be produced was the affidavit of Nasib Singh, who was never cross-examined by the plaintiffs and, in these circumstances, the affidavit of Nasib Singh without cross-examination is meaningless Nasib Singh never appeared in the witness box. If he has made any statement before the trial Court, before the framing of the issues, it cannot create any right, title or interest in favour of the defendants. In this regard, I can quote with advantage, the reasons given by the first appellate Court in paras 29 and 30, which read as under:-
"29. So far as first application is concerned, a civil suit was filed by Raj Pal and others against the present respondents-plaintiff for permanent injunction and, however, the said suit was got, dismissed as withdrawn by them on the plea that the plot in dispute belongs to Nasib Singh. However, there is no statement of respondents-plaintiff admitting Nasib Singh as owner of the plot in dispute. Hence, the said documents are not at all relevant for deciding the controversy in dispute. Moreover, filing and withdrawal of the said suit was in the knowledge of the appellants since the very beginning. This fact is proved from cross-examination of Ganpat Ram PW5 on behalf of appellants. In the cross-examination a question was put to him that a suit was filed by Nathu Who is brother of Nasib and that the said suit was withdrawn by neither. Hence, plea of appellants that they came to know about the filing of the said Suit and withdrawal of the Same after decision of the present suit cannot be accepted. Hence, firstly the factum of filing of such suit was in the knowledge of appellants since the very beginning and hence the said documents could be produced before the trial Court. Secondly the documents are not. at all relevant for deciding the controversy in dispute.
30. Another document sought to be produced is affidavit of Nasib Singh dated 19.3.1987. However as per Section 3 of the Evidence Act, affidavit cannot be said to be legal evidence. Statement of Nasib Singh was recorded by the learned trial Court before framing the issues. Nasib Singh did not appear in the witness box before the learned trial Court during his life time. Hence the alleged affidavit of Nasib Singh also cannot be permitted to be tendered in evidence by way of additional evidence before this court.
20. With regard to the second application also under Order 41, Rule 27 C.P.C, it has been rightly rejected. There is no admission on the part of the plaintiff that the plot in dispute does not belong to them or that it belongs to Nasib Singh or Roshan Lal. If we read the language of Order41, Rule 27 C.P.C. it says in categorical terms that no party to the appeal as the right to lead additional evidence unless it brings his case squarely within the requisites of Order 41 Rule 27 C.P.C. of the appellate Court comes to the conclusion that for the just decision of the case, sortie additional evidence is required. Meaning thereby, that on he mere wish of the litigant, the application under Order 41, Rule 27 C.P.C. cannot be allowed.
21. On merit, the case can be viewed from two angles; whether the plaintiff purchased the site in question on the basis of sale dated 6.1.1932, Ex.PW -5/1 or that the defendent-appellant purchased the site in question on the basis of sale deed dated 17.9.1985, Ex.P-5 from Nasib Singh. The major argument of the counsel for the appellant in this case was that since the boundaries as mentioned in the sale deed Ex. PW-5/1 dated 6.1.1932 do not tally with the boundaries mentioned in the site plan, therefore, the plaintiffs have not been able to establish their title. On the contrary, the defendant has become the owner of the property by virtue of the sale deed dated 17.9.1985 executed by defendent No. 1.
22. The argument of the counsel for the appellant may look alluring at the first instance because it is basic law that when there is a conflict between the boundaries and the area, the boundaries are bound to prevail. However, in the present case, this principle of law may not be applicable for the simple reason that the sale deed which is being relied upon by the the plaintiffs is a very old document as its execution shows that it was executed on 6.1.1932. Meaning thereby that it is a document about 60/65 years old. As rightly remarked by the first appellate court, there can be a considerable change since then in the area around the plot in dispute. The Municiple Committee has also come into existence who constructed many roads and drains. Many people have also constructed their houses. In these circumstances, it cannot be said that the plaintiffs have not been able to prove their ownership and possession on the site in question. Moreover, the defendents basically relied upon an affidavit of Umrao Singh, who sold the site inn question as per sale non-else but a close relation of Nasib Singh, defendant No. 1, who allegedly sold the site in question to defendant No. 2. Mere placing on record the affidavit of Umrao Singh will not deprive the plaintiffs of their right which was conveyed to them vide Ex.PW-5/1 dated 6.1.1999. Of course, in the affidavit, Umrao Singh has stated that the plot in question belong to Nasib Singh. However, self-serving statement on the part of Umrao Singh cannot bind the right, title and interest of the plaintiffs unless Umrao Singh satisfactorilly explains under circumstances he executed the sale deed Ex.PW-5/1 in favour of the plaintiffs. Moreover, the affidavit as such cannot be. read for the disadvantage of the plaintiffs unless they get an opportunity to cross-examine Umrao Singh. The affidavit is not a legal evidence under Section 3 of the Evidence Act unless the opposite party gets a right to cross-examine the deponent. Moreover, no formal order was passed by the court under 0.19 Rule 1 or 2, CPC, for admitting the affidavit into evidence. No reasons have been advanced why Umrao Singh has not come in the witness box. The learned counsel for the appellant submitted that Umrao Singh was an old man and that is why he could not come in the witnsss box. If that was so, the statement of Umrao Singh could be recorded on Commission but no effort has been made by the defendants to examine Umrao Singh. Even Nasib Singh did not appear after the framing of the issues. He just gave his statement before the issues and thereafter, he did not rebut the case of the plaintiffs.
23. With regard to the report of the Local Commissioner, Shri K.C. Bhatia, he was directed to visit the spot and to report as to what was the existing position of the site in dispute. The Local Commissioner prepared the site plan at the spot and he examined the site in the presence of several persons including Lambardar, etc. The report of; the Local Commissioner went against the defendants. He found that the door of the house of the plaintiffs open in the plot and there is a wall in existence in between the plot in dispute and Bara of Nasib Singh, clearly indicating that Nasib Singh had no right, title or interest in the site in question. No objections were filed to the report of the Local Commissioner. With regard to the other evidence of possession, it was proved that the plaintiffs were exercising the possession over the site in question for the last 50 years. The statement of the plaintiff Ganpat was substantiated by Tek Chand Municipal Commissioner and one Baru Ram Lambardar, as well as by Jagpal. All these three persons stated in one word that they had been seeing the plaintiffs in possession of the Bara in dispute since the age of discretion, No witness has been examined by the defendants from the neighbourhood to establish their possession. It appears that Nasib Singh had no right, title or interest in the property and for his own convenience, he sold the site vide sale deed dated 17.9.1985 in favour of defendant No. 2 and, thereafter, the defendant No. 2 started interfering in the established possession of the plaintiffs.
24. As I have staged above that the statements of the parties were recorded by the trial Court before the framing of the issues and Banarsi Das father and. attorney of the appellant stated on oath on 10.6.1987 that he had satisfied himself that Nasib Singh was the owner of the plot in question after going through the documents of ownership. Where are those documents, has not been explained by the counsel for the appellant. Even Nasib Singh deposed that he was having revenue documents regarding his owner-ship over the plot in question he contradicted his stand by saying later that the property was ancestral with him. Then he stated, that the property was given to him by the Government. Again, there is no record of ownership in favour of Nasib Singh. When the best evidence has been withheld by Nasib Singh or by the appellant, they cannot take the benefit by saying that the site in question was sold to the appellant on 17.9.1985 vide Ex.P-5.
25. Assuming for the sake of arguments and taking to the worst for the plaintiffs that they have not been able to prove their ownership by virtue of the sale deed dated 6.1.1932. Ex,PW-5/1, still they can be granted a decree for injunction once it is established that they are in established possession. I have already stated above that both the courts have rightly appreciated the evidence by holding that the plaintiffs are in possession, of the property for the last 50 years. Their possession has also been established by circumstances and also by the report of the Local Commissioner.
26. In this view of the matter, there is no wrong With the impugned judgments.
27. The counsel for the appellant, then, relied upon Punjab Urban Planning and Development Authority v.
Shiv Saraswati Iron and Steel Re-Rolling Mills, 1998(2) Judicial Reports (Civil and Rent) 30, where it was held that the plaintiff must succeed or fail on his own case and cannot take advantage of weakness in the defendant/respondent's case to get a decree. Similar observations were made by the Hon'ble Supreme Court in Ram Das v. Salim Ahmed and Anr.,1999(1) Judicial Reports (Civil and Rent)
281. Counsel for the appellant also relied upon Babaji Dehuri and Ors. v. Biranchi Ananta and Ors., 1996(1) Civil Court Cases 605 (Orissa) in which it was held that the real intention of the parties has to be gathered from the surrounding circumstances as well as the sale deed and when there is a conflict in the description of property in a sale deed or any other instrument, so far as plot number, Khata number and boundaries ire concerned, generally the boundaries are to prevail.
28. For our purposes, the word 'generally' is Very important. It is not the rule of the law that when there is a conflict between the area and boundaries, the boundaries will prevail always but the real intention of the parties has to be gathered in the present Case, it stands established that Umrao Singh sold that plot vide sale deed dated 6.1.1932, Ex.PW-5/1 in favour of the plaintiffs. Later on, Nasib Singh a close relative of Umrao Singh sold the same site on 17.9.1985 and it is not proved on the record that Nasib Singh was the owner at any time or that he ever delivered the possession of the site in question to the defendant -appellant. The civil cases are decided on probabilities of evidence.
29. Counsel for the appellant, finally, relied upon Jagdish v. Fakir Chand, 1999(3) R.C.R. (Civil) 316. I have gone through this judgment. This judgment, rather, goes against the appellant.
30. I have examined the impugned judgments from every angle projected by the counsel for the appellant and do not see any infirmity in the same. Consequently, the appeal is hereby dismissed in limine.