Chander Bhan And Ors. vs Pehlad And Ors.
1987 Latest Caselaw 439 Del

JUDGMENT

P.K. Babri, J.

(1) This is a second appeal brought against the judgment dated the 10th of August 1972 of Shri H.C. Goel, Addl. District Judge, Delhi (as his Lordship then was) by which he has accepted the appeal filed against the judgment and decree dated 15th of March 1971 passed by Shri Sagar Chand Jain, Sub Judge 1st Class, Delhi, and that he had set aside the judgment and decree of the lower court and dismissed the suit brought by the appellants seeking injunction against the defendants.

(2) Briefly stated the facts of the case are that the appellants had instituted a civil suit seeking relief of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs in respect of the plot Nos. 30 and 17 in village Rithala in the Union Territory of Delhi and also restraining them from enforcing their way through the said plots. In all there were 11 defendants in the suit and one of them was one Pehiad. The case set up by the plaintiffs in brief is that the plaintiffs are owners of the house built on plot No. 30 in village Rithala and that the plot No. 17 is quite adjacent to their house and it had been allotted to the plaintiffs by the Custodian since the year 1947 and they have been paying damages or lease money to the Custodian since then. It was pleaded that there is no open space or passage in between plot Nos. 30 and 17 and that there existed a common passage beyond the boundary of plot No. 17 on north side for going to the well etc. They pleaded that the defendants being the influential people of the village have threatened to use the said plot No 17. as passage to which they have no right and proceedings under Section 147 of the Code of Criminal Procedure have also been taken which are pending in the Court of Shri D.C. Misra, Revenue Assistant Magistrate and proceedings under Sections 107/145 of the Code of Criminal Procedure have also been taken between the parties. All the defendants had filed a common written statement pleading that the plaintiffs are the owners of plot No. 30 but they pleaded that the house constructed on the said plot existed beyond the boundary of the said plot, encroaching upon a public thorough fare. It was also pleaded that one Badlu was the owner of plot No. 30 who migrated to Pakistan 1948 and that the only passage to the said house of Badlu is from the public thorough fare and all the houses constructed adjacent to the Badlu's house are in row and they all open in the public thorough fare. It was also pleaded that there was no plot No. 17 located adjacent to plot No. 30 and that only a public passage or a thorough fare stands located adjacent to plot No. 30, so it was denied that the plaintiffs have taken any said plot No. 17 adjacent to the plot No. 30 from the Custodian. Following issues arose from the pleadings : "I.Whether the plaintiffs are the owner in possession of the house described in para 1 of the plaint ? OPP. ii. Whether the plaintiffs have any right over plot No. 17 ? If so, in what capacity and whether plaintiffs are entitled for the injunction sought by them against the defendants with respect thereto ? OPP. iii. Whether the defendants have any right of way or passage between the plots No. 30 and 17 ? OPD. iv. Relief."

In support of the case one of the plaintiffs, Chander Bhan, as PW-1 had made oral testimony that there existed plot No. 17 adjacent to the plot No. 30 and that the plaintiffs have been paying rent of the said plot to the Custodian since the year 1947 and that there is no public passage existing adjacent to plot No. 30. He proved the map Ex. P-l and also Ex. P-2 was tendered in evidence mentioning it as a copy of shajra sakni. In cross-examination he admitted that plot No. 30 originally belonged to Badlu and he also admitted that in the open space adjacent to the plot No. 30 which plaintiffs claimed as plot No. 17 the doors of house of S/Shri Tare; Raghubir and Sukhdev opened. This particular statement of the plaintiffs has itself made it clear that, in fact, the adjacent open space to plot No. 30 could not possibly be exclusive property of the plaintiffs inasmuch as the doors of the houses of other persons opened in that particular open space. However, no other documentary evidence was placed before the Court to show that this particular plot which plaintiffs claimed to bear plot No. 17 at any time vested in the Custodian and plaintiffs have been allotted that plot by the Custodian. In rebuttal DW-1 Shri Mangat, DW-2 Shri Laik Ram, DW-3 Prabhu and DW-4 Bishan Singh appeared in the witness box and deposed that since their gaining consciousness the said disputed open space has always been used as a public passage. In rebuttal the plaintiffs had examined PW-2 Shri Sunder Singh, from the office of the Rehabilitation Department who stated from some record that there was plot No. 17 in village Rithala of which the plaintiffs are the lessees of the Custodian. He deposed that there is no vacant passage in between the plot Nos. 30 and 17. Unfortunately, the plaintiffs had not got proved the record on the basis of which this witness made the statement. If he was making this statement from the public record, then copies of the same ought to have been produced on record.

(3) The learned Sub Judge had given the findings that in view of Ex.P-2, copy of Shajra sakni, it is proved that the plaintiffs are lessees of the Custodian in respect of plot No. 17 existing adjacent to the plot No. 13 and the same cannot be considered to be a public thorough fare. The first appellate court, however, gave the finding that Ex. P-2, is not properly proved as it is stated to be only an extract of shajra sakni and extract of shajra could not be tendered in evidence. The first appellate court gave the finding that, in fact, the plaintiffs have failed to establish that they have any exclusive right in the said plot in dispute. I have examined Ex. P-2 and find that it is not a copy of any shajra sakni prepared by any revenue official so that any presumption of truth could be attached to such a document under Section 44 of the Punjab Revenue Act. This document appears to have been issued by the Rehabilitation Department but it does not make it clear as to who has prepared the original of this document. This document also shows that the house No. 29 which is located in the eastern side of plot in question has a door opening in this plot. If that is so how it can be said that the plaintiffs have been given any exclusive right of user of this plot. Be as it may, this document is not a copy of the revenue record which could be considered as a public document and could be taken in evidence without any mode of proof. This document is termed as shajra sakni. It is not shown as to who had prepared the original shajra and whether the said document has been prepared by any official in performance of his official duties. It is also not shown to whom this plot No. 17 originally belonged and how it came to be vested in the Custodian. So, as a matter of fact, the plaintiffs have not brought on record the best evidence in the shape of the record of the Custodian showing that this particular plot belonged to some evacuee and that it vested in the Custodian and that the Custodian has allotted this plot to the plaintiffs. In the absence of the best evidence which could be produced by the plaintiffs an inference has to be drawn that there is no such documentary evidence to show that, in fact, this plot ever vested in the Custodian and that the Custodian at any time allotted this plot to the plaintiffs. Oral testimony of PW-2 cannot be accepted as it is sought to be relied upon by the counsel for the appellants. After-all PW-2 does not have any personal knowledge about the facts of the said plot and he might have deposed some facts on the basis of some official record but then the contents of record cannot be proved by giving oral testimony. Hence I hold that the plaintiffs had miserably failed to prove that they have any exclusive rights in the plot in dispute or that they have' exclusive possession of the plot in dispute.

(4) A bare look at the map. Ex. P-l, would show that it is a part of the public thorough fare. The door of house No. 29 shown to open in this very plot. The other house adjacent to the house No. 29 are in a row in a straight line and doors of those houses also open admittedly on the public thorough fare. So the plaintiffs have failed to prove that they have any exclusive right in the said disputed plot. I affirm the findings of the lower appellate court but for some different reasons.

(5) A legal objection has been raised by the learned counsel for the appellants that the appeal filed before the first appellate court had abated inasmuch as one of the original defendants had died in the year 1973 and no legal representatives of the said defendant had been brought on record. In this appeal Pehiad was made a respondent by the appellants but when report came that he had died, the appellants also did not bring on record the legal representatives of Shri Pehiad. However, the case of the respondents and Shri Pehiad was common and in view of the provision of Order 41 Rule 4 any of the defendants could have brought an appeal. It has been held in 1980 Rlr 440. Banarsi Das etc. v. Mewa Devi, that even if an eviction order is made against more than one tenant and all the tenants do not appeal or are made respondents even then eviction order can be got set aside by one of the tenants by filing an appeal. In , Kumaraswami Gounder and others v. D.R. Nanjappa Gounder and others, it was again held that when there are common grounds agitated by certain defendants then the appeal by some of the defendants is maintainable in view of the provisions of Order 41 Rule 4 and Rule 33 of the Code of Civil Procedure. So it is quite clear that the defendants who had brought the appeal could get the judgment and decree of the lower court set aside even though one of the defendants, namely Pehiad has not joined as co-appellant. The counsel for the appellants has, however, cited , Dwarka Prasad Singh and others v. Harikant Prasad Singh and others. This was a case of specific performance of agreement for sale where the vendor had died and his legal heirs were not brought on record and in such a case it was held that the appeal would be deemed to have abated. The facts are distinguishable in this case because here all the defendant in the suit had a common plea and in view of Order 41 Rule 4 and Rule 33 of the Code of Civil Procedure any of the defendants could file an appeal and get set aside the whole of the judgment and decree. Such was not the case before the Hon'bic Supreme Court. Then reference is made to , Sajjan Singh v. Ganga Ram and others, in which it was held that if there was a joint and indivisible decree in favor of number of plaintiffs but one of the plaintiffs had died and in appeal legal representatives of the said plaintiff were not brought on record, then in such a case it was held that decree being joint and indivisible so the appeal had abated. Here the plaintiffs in whose favor the decree was passed by the lower court were joined as respondents in the appeal before the first appellate court. So the question of the appeal having abated or possibility of making any conflicting judgment and decree did not arise because in view of Order 41 Rule 4 and Rule 33 of the Code of Civil Procedure the whole of the decree could be got set aside by some of the defendants by filing an appeal. So I hold that the appeal before the first appellate court had not abated. I do not find any merit in this appeal which I hereby dismiss but in view of the peculiar circumstances of the case I leave the parties to bear their own costs throughout.