Punjab-Haryana High Court
(O&M;) Puran Chand vs Naresh Kumar on 22 December, 2014
RSA-1407-1988 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-1407-1988 (O&M)
Date of decision: 22.12.2014
Puran Chand ...Appellant
Versus
Naresh Kumar ...Respondent
RSA-1509-1988 (O&M)
Naresh Kumar ...Appellant
Versus
Puran Chand ...Respondent
CORAM: HON'BLE MRS.JUSTICE SNEH PRAHSAR
Present: Mr.Sanjiv Gupta, Advocate
for appellant in RSA 1407-1988
for respondent in RSA-1509-1988
Mr.Ritesh Aggarwal, Advocate for
Mrs.Alka Sarin, Advocate
for appellant in RSA-1509-1988
for respondent in RSA-1407-1988
****
SNEH PRAHSAR, J.
1. This judgment shall dispose of both the aforementioned appeals arising out of the judgment and decree dated 18.1.1988, passed by the learned Additional District Judge, vide which the appeal filed by Puran Chand-defendant (hereinafter referred to as 'the defendant') against the judgment and decree dated 1912.1985, passed by learned Senior Sub Judge, Narnaul, decreeing the suit in GAURI SHANKER favour of Naresh Kumar plaintiff (hereinafter referred to as 'the 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 2 plaintiff'), was partly allowed.
2. The facts garnered from the record are as under:-
A simpliciter suit for permanent injunction was filed by Naresh Kumar- plaintiff seeking to restrain Puran Chand -defendant from interfering in his possession over a residential plot, having some dilapidated construction on the same situated in Purani Mandi Narnaul, shown in red colour and by words ABCD in the site plan annexed with the plaint, and bounded as under:
East: Open land;
West: House of Ram Sarup and road;
North: House of Parbhati; Ajodhya; Sant Lal and open land;
South: House of Hari Ram and Indraj and open land;
(hereinafter referred to as 'the suit property')
3. Naresh Kumar claimed to be owner in possession of the suit property entered as property No.277 in the property tax register of the Excise and Taxation Department office for the year 1968-73. He pleaded that the suit property was taken on rent from him by one Rohtas Singh vide rent note Ex.P2 dated 25.5.1976. A petition for ejectment was filed by him against Rohtash Singh, which was allowed in his favour vide judgment dated 21.4.1977. During the execution proceedings of the ejectment order, possession of the suit property was handed over to him by the Bailiff of the Court on 4.6.1977.
GAURI SHANKER2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 3
It was further alleged that Puran Chand being a clever person and with intention to usurp the suit property had got executed a sale deed in his favour on 12.8.1974, from one Jiwan Ram s/o Ram Narain, resident of Purani Mandi, Narnaul for a consideration of Rs.1000/-. The sale deed was challenged as a false and mere paper transaction based on fraud and collusion between Puran Chand and Jiwan Ram, who both had no connection whatsoever with the ownership and possession of the suit property.
Pleading that Puran Chand was bent upon to dispossess him and to interfere in his possession over the suit property on the basis of the sale deed and on 22.6.1981, he had started digging foundation, which was likely to cause wrongful loss to him, Naresh Kumar prayed for a permanent injunctive order against him.
4. Puran Chand -defendant contested the suit. He alleged that he had purchased the suit property by virtue of the sale deed dated 12.8.1974 and had constructed a pucca house on the same long back. The entry in the property tax register of the Excise and Taxation Department office, wherein Naresh Kumar had allegedly been shown as owner, was stated to have been forged, as a result of collusion between Naresh Kumar and the aforesaid department and therefore, had no binding effect on his rights. The rent note got executed from Rohtash Singh was also alleged to be a mere paper transaction. Pleading that Naresh Kumar was not in possession of GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 4 the suit property and therefore, had no locus standi to file the present suit and also that the suit was not maintainable in the present form, Puran Chand prayed for the dismissal of the suit with special costs.
On the rival contentions of the parties, the following issues were settled and they were put to trial:-
1. Whether the plaintiff is the owner and in possession of the suit property?OPP
2. Whether the defendant is the owner in possession of the property in question?OPD
3. Whether the suit is not maintainable in the present form?OPD
4. Whether the defendant is entitled to special costs. If so, how much?OPD
5. Relief."
Both the parties led their oral as well as documentary evidence in respect of their contentions.
The learned trial Court found Naresh Kumar-plaintiff to be owner of the suit property, but was of the view that Puran Chand- defendant was in possession of the said property and accordingly, issue Nos.1 and 2 were decided. Analysing the set of facts and law under issue no.3 and recording his finding that there was no evidence that the construction by Puran Chand was raised long back, Naresh Kumar was held entitled to a decree of permanent injunction against Puran Chand and accordingly, the issue was GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 5 decided and the suit was decreed against Puran Chand with cost and the latter was directed to remove his construction, if any, and restore the possession over the suit property to Naresh Kumar within a period of two months from the date of the order.
5. Aggrieved by the judgment and decree dated 19.12.1985, passed by the learned trial Court, Puran Chand preferred an appeal, which was disposed of by the learned Additional District Judge, Narnaul vide impugned judgment and decree dated 18.1.1988. The decree passed by learned trial Court was modified to the extent that Puran Chand shall not interfere with the rights of Naresh Kumar and shall remove the construction, if any, on the suit property as delineated in the site plan Ex.PW12/A except the portion measuring 46' 6"x 34' as sketched in plan Ex.DW5/A, over which he had raised construction after execution of the sale deed dated 12.8.1974, Ex.DW1/A in his favour by a person named Jiwan.
6. The modification in the decree by learned first appellate Court prompted both the parties namely Naresh Kumar- plaintiff and Puran Chand- defendant, to prefer the regular second appeals.
7. Learned counsel for the parties have been heard and the record was perused.
8. As is evident from the facts observed above, Naresh Kumar- plaintiff claimed to be owner of the suit property. As far as GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 6 possession was concerned, his case was that initially one Rohtash Singh was in possession as a tenant vide rent note Ex.P2 dated 25.5.1976, and after he was ejected from the suit property by way of the ejectment order dated 21.4.1977 Mark 'A', the possession of the suit property was handed over to him on 4.6.1977 by the Bailiff of the Court during the execution proceedings. Subsequent to 4.6.1977, he uttered nothing in his pleadings with regard to the possession of the suit property.
However, entering the stage of evidence, Naresh Kumar brought in some new facts and documents. Stepping into the witness box as PW12, he reiterated his claim on oath and also proved the rent note dated 25.5.1976, Ex.P2 by examining Scribe PW1 Sita Ram Sanghi and attesting witness PW4 Shayam Sunder. Sant Singh Bailiff to the Court of Senior Sub Judge, Narnaul appeared as PW7 and proved his report Ex.PW7/A, whereby he had delivered the possession of the suit property to Naresh Kumar, in execution of the ejectment order passed against Rohtash Singh. PW11 Shri Kishan and PW13 Gobind Ram corroborated the claim of Naresh Kumar that he is owner of the suit property and that presently his tenant Sardar Singh is in occupation of the same.
9. Introducing the factum of tenancy of Sardar Singh, Naresh Kumar proved another rent note Ex.P3, dated 24.3.1978 executed between him and one Sardar Singh and deposed that his GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 7 tenant Sardar Singh was now in possession of the suit property. Scribe PW3 Madan Mohan and attesting witness PW6 Ram Gopal of the rent note Ex.P3 were examined. Another new factum brought in by Naresh Kumar was that the suit property was mortgaged by him with Vijay Kumar vide mortgage deed Ex.P1 for an amount of Rs.500/- in the year 1975. The scribe of the document was same PW1 Santa Ram Sanghi, who proved the same. The attesting witness was PW8 Shri Kishan, Nambardar. Vijay Kumar mortgagee appeared as PW9 and testified that the suit property remained mortgaged with him vide mortgage deed Ex.P1.
10. The mortgage deed Ex.P1, dated 26.12.1975 purported to have been executed in favour of PW9 Vijay Kumar mortgagee, in itself was of no help to Naresh Kumar because that charge of mortgage was without possession. Similarly the execution of rent note Ex.P3 dated 24.3.1978 could hardly be of any significance because the said rent note, according to Naresh Kumar, was in existence on 24.3.1981 i.e. the date on which the suit was instituted but it found no mention in his pleadings. So much so, that it was not ever mentioned in the pleadings by Naresh Kumar that the suit property was presently in occupation of his tenant. Neither the person named Rohtash Singh depicted as tenant in possession of suit property in 1975-76, nor Sardar Singh stated to be tenant in possession since March 1978, entered the witness box to accept the GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 8 facts relating to them. It can be said without hesitation that the rent note Ex.P3 dated 24.3.1978 was brought into existence only as an after thought.
11. Be that as it may, it was rightly observed by the learned first appellate court that the dispute was between the parties with regard to the portion of the suit property measuring 46'-6" x 34' as depicted in the site plan Ex.DW5/A i.e. the portion which defendant Puran Chand claimed to have purchased from Jiwan Ram s/o Ram Narain vide registered sale deed Ex.DW1/A dated 12.8.1974. It is the said finding which ultimately led to modification in the decree made by the learned first appellate court and prompted Naresh Kumar to file the regular second appeal.
12. No doubt, as argued on behalf of Puran Chand, he disputed the rights claimed by Naresh Kumar qua the entire suit property, but the fact was that the pleadings were crystal clear on the matter. He asserted that he had purchased the suit property on which he had constructed a house long back. It was on the basis of the registered sale deed Ex.DW1/A that he claimed the alleged ownership as well as possession on the suit property. A bare perusal of the sale deed Ex.DW1/A shows that by virtue of the said document, Puran Chand purchased an area measuring 175 Sq.yards approximately. He submitted the site plan Ex.DW5/A regarding the property purchased by him. Neither in his pleadings, nor when he GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 9 stepped into the witness box, he spelt out a word to say that in addition to the plot purchased by him, he was in possession of the other portion also of the suit property. He asserted his right only over the limited portion of the suit property, which had been purchased by him. As such, he was estopped from subsequently claiming that the entire property in respect of which, Naresh Kumar had filed the suit, was in his possession. It was a separate matter, whether his site plan Ex.DW5/A was sanctioned or was rejected by the Municipal Committee authority, but he cannot wriggle out of the fact that he had connection whatsoever only with the portion as described in the sale deed Ex.DW1/A and the site plan Ex.DW5/A. As regards the remaining portion of the suit property, except the portion 46'-6" x 34', defendant Puran Chand could neither dispute the ownership of Naresh Kumar nor could raise issue about possession of the same of the owner.
13. On the date i.e. 24.6.1981 the suit was instituted by Naresh Kumar, he alleged that since 22.6.1981 (morning) Puran Chand had started digging foundation on the suit property claiming his right over the same by virtue of the sale deed Ex.DW1/A. Immediately after the suit was filed, Sh.D.C.Vashisth, Advocate, who appeared as DW3, was appointed as Local Commission to report about the construction, if any, and the GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 10 existing position at the spot. The report submitted by him was Ex.PA, dated 29.6.1981, and the rough site plan annexed with the same was Ex.PA/1. As per the said report, Puran Chand was found to be in possession of the suit property on which construction was being raised. He was raising construction alleging that the said property had been purchased by him from Jiwan Ram. Local Commission mentioned in his report that construction on the plot had been recently raised. The construction may be fresh, but it could not be said that it was raised after institution of the suit when Naresh Kumar himself had mentioned that two days prior to the filing of the suit, Puran Chand had started digging foundation.
No evidence could be produced by Naresh Kumar to explain when and how Puran Chand came into possession of the plot before he started raising construction.
14. There are no two thoughts on the proposition of law that a person claiming title on the basis of the sale deed is under obligation to prove the ownership of his vendor and the evidence of Puran Chand was completely lacking on that matter. He could produce no oral or documentary evidence regarding ownership of his vendor Jiwan Ram qua the plot purchased by him. It was also true that vide order dated 9.5.1977, the site plan Ex.DW4/A submitted by Puran Chand with the Municipal committee was sanctioned. Naresh Kumar claiming to be owner of the suit GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 11 property, filed an appeal to the Deputy Commissioner (Appellate Authority) against the order dated 9.5.1977, and the appellate authority vide order dated 28.11.1978, revoked the order dated 9.5.1977 and rejected the site plan of Puran Chand observing that from the sale deed in favour of Puran Chand, it was not established that Jiwan Ram was the owner of the property in dispute and he had a transferable right.
15. To support his contention that the sale deed executed by Jiwan Ram was a false document, Naresh Kumar tendered in evidence the order Ex.PG dated 24.1.1983 passed by the Registrar (Deputy Commissioner), Narnaul, upholding the order dated 23.12.1982, of Sub Registrar, Narnaul, refusing to register the sale deed executed by Jiwan Ram in favour of Siri Ram s/o Ram Gopal. Jiwan Ram was found to be having no title transferable in the property and for that reason, the sale deed was not registered by the Sub Registrar, Narnaul.
16. Learned counsel representing Naresh Kumar argued that Jiwan Ram was a land grabber, who was in habit of executing sale deeds of different lands in favour of different persons without having any ownership/transferable title. Indeed, the onus was on Puran Chand to prove title of Jiwan Ram qua the portion of the suit property in his possession, but he was unable to prove the same.
17. Be that as it may, it is a settled proposition of law that GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 12 plaintiff can succeed only on the strength of his own case and not by taking advantage of the weakness in the defendant's case. The case in hand was a simpliciter suit for permanent injunction filed by Naresh Kumar. As such, it was incumbent upon him to prove that he was in possession of the entire suit property on the date of institution of the suit, whereas it has already been observed above that he himself pleaded that Puran Chand had started digging construction on 22.6.1981 i.e. Two days prior to the institution of the suit by him on 24.6.1981.
18. The Hon'ble Apex Court in Sri Thimmaiah vs. Shabira and others 2008(1) RCR (Civil) 915, has held that "in a suit for permanent injunction, the foundational fact which had to be established was possession." The same proposition of law was laid down by the Hon'ble Apex Court in Ramji Rai and another vs. Jagdish Malla (dead) through L.Rs and another 2007(3) RCR (Civil) 680.
19. At the cost of repetition, it may be mentioned that the Local Commissioner, who visited the spot, which is after five days of the institution of the suit, found that Puran Chand was in possession as there existed his construction on a portion of the suit property.
Thus, even if it is accepted in view of the entry recorded in the property tax register of the Excise and Taxation Department GAURI SHANKER 2015.01.06 09:28 I attest to the accuracy and integrity of this document High Court Chandigarh RSA-1407-1988 (O&M) 13 Office for the year 1968-73 and the subsequent documents i.e. Rent note Ex.P2 and mortgage deed Ex.P1 etc. that Naresh Kumar was owner of the suit property bearing unit No.277, yet there is nothing to establish that the portion measuring 46'-6" x 34' i.e. an area measuring 175 sq. yards as depicted in the site plan Ex.DW5/A of Puran Chand was part of unit No.277 that was the property owned by Naresh Kumar as described by him in his pleadings. From that it follows that since the plaintiff had failed to prove his possession on the area measuring 175 sq. yards out of the suit property, he by no stretch of imagination could claim an injunctive order qua the said portion of the suit property and it was rightly held by the learned first appellate court that claim of Naresh Kumar with respect to that portion must inevitably be defeated. Accordingly, the judgment and decree dated 18.1.1988, passed by the learned first appellate court is upheld and the appeal preferred by Naresh Kumar as well as the appeal of Puran Chand are dismissed.
22.12.2014 (SNEH PRASHAR)
gsv JUDGE
Note: Whether to be referred to the Reporter? Yes/No
GAURI SHANKER
2015.01.06 09:28
I attest to the accuracy and
integrity of this document
High Court Chandigarh