Punjab-Haryana High Court
Balwant Singh vs Charan Singh And Others on 23 July, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
R. S. A. No. 3201 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 3201 of 2012 (O&M)
Date of Decision : July 23, 2012
Balwant Singh .... Appellant
Vs.
Charan Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
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Present : Mr. Gopal Krishan Saini, Advocate
for the appellant.
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L. N. MITTAL, J. (Oral) :
C. M. No. 8517-C-II of 2012 :
For reasons mentioned in the application, which is accompanied by affidavit, delay of nine days in re-filing the appeal is condoned.
C. M. No. 8518-C-II of 2012 :
Allowed as prayed for. Main Appeal :
Defendant no.1 Balwant Singh has filed this second appeal. Respondents no.1 and 2/plaintiffs Charan Singh and his wife R. S. A. No. 3201 of 2012 (O&M) 2 Gian Kaur filed suit against defendant no.1-appellant Balwant Singh and proforma respondent no.3-defendant no.2 Gurwinder Singh alleging that plaintiff no.2 had purchased property depicted by letters ACDF in the site plan along with adjoining property from Durga vide sale deed dated 04.01.1969. Plaintiff no.2 retained the suit property depicted by letters ACDF in the site plan, but sold the remaining property to one Prabha Singh.
Suit property ACDF was retained to facilitate passing of water of houses of plaintiffs. However, in June 2004, in the absence of plaintiffs, defendants have illegally encroached upon the property depicted by letters BCDE in the site plan out of property ACDF by raising construction and by laying down underground pipe. On demand, the defendants refused to remove the construction and pipe. Accordingly, plaintiffs sought mandatory injunction directing the defendants to remove the same from portion BCDE and also permanent injunction restraining the defendants from opening any window, ventilator, door etc. towards property of plaintiff depicted by letters BDFA.
Defendants, while broadly controverting the averments of the plaintiffs, pleaded that disputed property BCDE is owned and possessed by defendants. Their old construction with roof of wooden ballas and shteers existed there and recently, defendants renovated the same by laying lintels. Defendants denied having encroached upon any part of the property of plaintiffs.
Learned Additional Civil Judge (Senior Division), Anandpur R. S. A. No. 3201 of 2012 (O&M) 3 Sahib, vide judgment and decree dated 07.11.2011, dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge (FTC), Ropar, vide judgment and decree dated 24.04.2012 and thereby, suit filed by the plaintiffs has been decreed. Feeling aggrieved, defendant no.1 has filed this second appeal.
Plaintiffs have proved their sale deed dated 04.01.1969, whereby plaintiff no.2 purchased property including the disputed property. This sale deed is otherwise also admissible in evidence being more than 30 years old. Plaintiffs also produced in evidence copy of sale deed dated 05.01.1983, whereby plaintiff no.2 sold her property except the suit property to Prabha Singh. Both the sale deeds prove that plaintiff no.2 is owner in possession of the suit property ACDF including the portion BECD, which has been encroached upon by the defendants. It is also worth mentioning that there was also litigation in the year 1981 regarding the same property between Charan Singh (plaintiff no.1) and Prabha Singh - the aforesaid vendee. In that case also, the disputed property was depicted to be of the plaintiffs. Local Commissioner has also reported that construction on the disputed portion BECD raised by defendants is new and recent.
All the aforesaid documentary evidence has been rightly found to be reliable by the lower appellate court to decree the suit of the plaintiffs. There is no cogent rebuttal of the aforesaid evidence. Defendants have not placed on record any documentary evidence to prove that they are owners of R. S. A. No. 3201 of 2012 (O&M) 4 the disputed portion. On the contrary, plaintiffs have produced document of title in the form of sale deed dated 04.01.1969 depicting that plaintiff no.2 is owner of the suit property.
Counsel for the appellant contended that sale deed dated 05.01.1983 has not been proved and its certified copy being secondary evidence is not admissible in evidence. The contention cannot be accepted. The sale deed was executed by plaintiff no.2. She has not disputed its execution. It is a registered document. Consequently, attesting witness of the sale deed was not required to be examined as witness to prove its execution in view of proviso to Section 68 of the Evidence Act. Moreover, even if sale deed dated 05.01.1983 is excluded from consideration altogether, even then case of the plaintiffs is proved by virtue of sale deed dated 04.01.1969.
Counsel for the appellant next contended that plaintiff no.2 has not stepped into the witness-box, whereas plaintiff no.1 has no right, title or interest in the suit property. The contention, apparently very attractive, is in fact very distorted, misleading, misconceived and devoid of substance. Plaintiff no.1 is none else but husband of plaintiff no.2. Plaintiff no.1 has stepped into the witness-box. Title of plaintiff no.2 over the suit property is proved. Both the plaintiffs are residing together in their house. Consequently, the aforesaid contention lacks any substance.
The trial court also held the suit to be not maintainable in the R. S. A. No. 3201 of 2012 (O&M) 5 present form of permanent injunction and mandatory injunction. However, the construction was raised just before the filing of the suit by defendants on the disputed portion. Consequently, suit for mandatory injunction for removal of the said construction, even without seeking relief of possession, is maintainable. Nevertheless, plaintiffs have also sought the relief that they be put in possession of the suit property as owners. Consequently, suit as framed, is certainly maintainable, as rightly held by the lower appellate court.
For the reasons aforesaid, I find that finding of the lower appellate court to decree the suit of the plaintiffs is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal or based on misreading or misappreciation of evidence. The said finding is the only reasonable finding that can be arrived at on appreciation of evidence on record. The said finding, therefore, does not warrant any interference. No question of law, much less any substantial question of law, arises for adjudication in this second appeal.
The appeal is bereft of any merit and is, accordingly, dismissed in limine.
July 23, 2012 ( L. N. MITTAL ) monika JUDGE