Punjab-Haryana High Court
Chakkar Pani vs Onkar Nath on 20 May, 1996
Equivalent citations: (1996)114PLR342
JUDGMENT N.K. Kapoor, J.
1. This is unsuccessful plaintiffs Regular Second Appeal. Parties are near relations. The plaintiff is the father of the defendant. Plaintiff filed a suit for permanent injunction restraining the defendant from interfering into his possession of the house in dispute and from raising any construction over the same. As per averments made in the plaint, plaintiff claimed himself to be the sole owner in possession of the house in dispute. Since the defendant who is his eldest son threatened him that he will forcibly occupy the house and thereafter raise construction; hence the present suit.
2. The defendant in his written statement averred that it is a part of joint Hindu undivided family. He further pleaded that the plaintiff is not in exclusive possession of the entire house and so the suit for injunction is not maintainable. On the other hand, it was stated that he is in possession of the house in dispute and so he has right to the construction of the house which is a joint Hindu family property.
3. On the pleadings of the parties, the following issues were framed: -
1) Whether the plaintiff is in exclusive possession of the property in dispute, OPP
2) Whether the plaintiff is entitled to the injunction prayed for, OPP
3) Whether the suit in the present form is not maintainable, OPD.
4) Whether the property in dispute is a joint Hindu Family property, If so its effect, OPD
5) Relief.
4. Learned trial Court took up issues No.1 and 4 together and on the basis of oral and documentary evidence adduced by the parties finally came to the conclusion that property is still joint between the parties and so every joint owner has a right on every inch of the property till it is partitioned. Accordingly, it was held that the plaintiff is not in exclusive possession of the house in dispute. The learned trial Court accordingly decided issue No.1 against the plaintiff and issue No.4 in favour of the defendant. Consequently, Issue No.2 was decided against the plaintiff. Issue No.3 was not pressed and so was decided against the defendant. Resultantly, the suit of the plaintiff was dismissed.
5. Before the lower Appellate court, the matter was once examined on fact as well as law.
6. Merely the contest revolved around the finding of the trial Court in respect of issues No.1 and 4. Challenging the findings in respect of Issue No. 1, and 4, the learned counsel for the appellant argued that the trial Court has, in fact, erred in law in coming to the conclusion that the house in dispute is a joint Hindu family property. Otherwise too since the onus of issue No.4 was upon the defendant, the trial Court ought to have granted a chance to rebut the evidence led by the defendant in respect of issue No.4. Merely for the reasons that the plaintiff inadvertently deposed as to the nature of the property while leading his evidence in affirmative by itself is no ground to deprive him his right to lead evidence in rebuttal. In any case, as per facts on record, the Court ought to have construed the provisions of Order 18 Rule 3, C.P.C. somewhat more liberally. The lower Appellate Court on perusal of evidence led as well as after considering the arguments advanced found no ground to reverse the findings of the trial Court in respect of issue No.1 and 4. Resultantly, the appeal was dismissed.
7. Challenging the concurrent findings of the Courts below, the counsel for the appellant, has termed these findings to be wholly illegal and otherwise unwarranted as per facts on record. According to the counsel, the Courts below have erred in law in not permitting the petitioner to lead any evidence in rebuttal since the decision on issue No.4 is vital in determining the controversy raised, the Court ought in the facts and circumstances of the case given permission to the appellant to rebut the evidence led by the defendant. Before examining the contentions raised I would like to make mention of the fact that attempts were made to resolve this unfortunate controversy between the father and son but without any success. It is only as a last resort that it was decided to hear the appeal on merit and decide the same. As noticed above, the dispute pertains to a house which is claimed to be an exclusive property by the plaintiffs, whereas it is stated to be joint Hindu family property by the defendant. Parties have adduced evidence to support their respective contentions each supporting the case of the party for whom they had put in appearance. The Courts below have primarily decided the dispute on the basis of statement of the plaintiff in this regard. The plaintiff in his replication as well as in his deposition has stated that house in dispute has been inherited by him from his father. Needless to over emphasis that son gets right on his birth in the ancestral property. It is precisely for this reason that both the Courts have came to the conclusion that house is a joint Hindu family property. It has also come on record that defendant too is residing in the house being a co-parcener/member of joint Hindu family. Since the defendant has a right in the joint Hindu family property no injunction can be granted against him and precisely for this reason the Courts found no merit in the plea of the plaintiff. I find no infirmity in the conclusion arrived at the Court below.
8. I also find no merit in the plea of the appellant that the plaintiff ought to have been granted an opportunity to adduce evidence in rebuttal since the onus of issue No.4 was upon the defendant. Order 18 deals with hearing of the suit and examination of witnesses. Order 18 R.1 deals with right to begin i.e. the plaintiff has right to begin unless the defendant admits the facts alleged by the plaintiff. Order 18 Rule 2 deals with statement and production of evidence i.e. on the date fixed for hearing of the suit, a party having the right to begin is to state his case and to produce his evidence in support of the issues which he is bound to produce. It is thereafter that the other party is to state his case and produce his evidence. Under Order 18 Rule 3, a case where there are several issues and the burden of proving some of which lies on the other party, the party beginning on his option can produce his evidence on these issues or reserve it by way of evidence produced by the other party and in the later case the party beginning can produce evidence on those issues after the other party has adduced all his evidence. In the instant case, the plaintiff while adducing evidence in affirmative; for reasons best known to him, choose to adduce evidence which strictly can be termed to be 'rebuttal evidence' to issue No.4. Thus instead of reserving the rebuttal evidence while leading the affirmative evidence as well i.e. he exercised his option under Order 18 Rule 3 of the Code of Civil Procedure thus forfeiting his right to lead evidence after the conclusion of evidence by the other side. Keeping in view the provisions of Order 18 Rule 3, Civil Procedure Code, the trial Court declined the plaintiffs prayer for adducing of evidence in rebuttal which conclusion has also been affirmed by the lower Appellate Court. In this regard too, I find no ground to reverse this finding of the Courts below. Finding no merit in the appeal the same is dismissed. No order as to costs.