Pardeep And Ors vs Gobind Ram
2022 Latest Caselaw 16030 P&H

RSA-3538-2011 (O&M)

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

                                  RSA-3538-2011 (O&M)
                                  Reserved on : November 30, 2022
                                  Pronounced on : December 07, 2022

Pardeep and others                                    ... Appellants

                                   Versus

Gobind Ram                                            ...Respondent

CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA

Present:-   Mr. Sudhanshu Makkar, Advocate for the appellants.

            Mr. Sandeep Kumar Yadav, Advocate for the respondent.

DEEPAK GUPTA, J.

Defendants of the case are in this appeal against the

concurrent findings of the Court below, whereby suit of the plaintiff-

respondent for decree for perpetual injunction has been decreed.

2. Trial Court record was called. Same has been perused. In

order to avoid confusion, parties shall be referred as per their status

before the learned Trial Court.

3. According to plaintiff-Gobind Ram (now respondent), he is

owner in possession of a residential house as shown by letters ABCDEF

in the attached site plan, situated at street No.1 Dhani Hanuman, Nai

Basti, Hanuman Gate, Jonpal Bhiwani. He had purchased the plot

underneath the said house vide sale deed dated 16.11.1969 (Ex.P1). He

raised construction in the same year and also got an electricity

connection. It was alleged that despite having no concern whatsoever

with his house, defendants Pardeep and others (now appellants) were

intending to grab his house, particularly the portion shown by letters

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BCDE in the site plan. With these allegations, plaintiff prayed for a

decree of perpetual injunction to restrain the defendants from interfering

in any part of his house, more particularly in the portion BCDE.

4. Defendants in the written statement, disputed the correctness

of the site plan relied upon by the plaintiff. According to them, portion

BCDE as shown in the site plan of the plaintiff, is in fact southern portion

of their (defendants' house) and that under the garb of the present suit,

plaintiff wanted to take possession thereof. With this stand and

controverting other averments of the plaint, defendants prayed for

dismissal of the suit.

5. No rejoinder was filed. Following issues were framed:-

1. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP

2. Whether the plaintiff has no cause of action to file the present suit? OPD

3. Whether the suit of the plaintiff is bad for mis-joinder and non- joinder of necessary parties? OPD

4. Relief."

6. After taking evidence produced by both the parties, learned

Trial Court held plaintiff to be owner in possession of the house in

dispute and by way of judgment dated 22.01.2010 granted decree of

perpetual injunction in his favour. In the appeal filed by the defendants,

the First Appellate Court affirmed the findings of the Trial Court, vide

judgment dated 26.04.2011.

7. Against the aforesaid concurrent findings, defendants are in

this appeal.

8. It is contended by learned counsel that the reasoning given

by courts below to decree the suit is judgment dated 10.12.2004 (copy

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Ex.P-2) titled as "Gobind Ram vs Municipal Committee, Bhiwani",

wherein defendants of this case were not a party and so, it is not binding

on them. Not only this, in the decree sheet Ex.P-3 prepared in that case,

plaintiff had shown his land and the house of the Pradeep (one of the

present defendants) in the eastern side of his house but in the site plan

Ex.P4 relied in this case, he has shown a street on the eastern side. Thus,

boundaries shown in the two litigations are different. Learned counsel

further contends that site plan Ex.P4 relied upon by the plaintiff is not

proved, as PW3 admitted during his cross-examination that he had

prepared the same as per instructions of the plaintiff without inspecting

the spot. Learned counsel further contends that during pendency of the

suit, defendants had moved an application for appointment of Local

Commissioner so as to prepare the map of the disputed site so as to show

the factual position. In reply to that application filed by plaintiff on

31.01.2006, the stand was taken by the plaintiff that during pendency of

the suit, defendants had illegally and forcibly encroached upon the

disputed portion BCDE as shown in the site plan and had raised

unauthorized construction thereon. However, in the execution petition

filed later on by the plaintiff in October, 2011, he claimed that possession

of the disputed property as shown by letters BCDE had been taken by the

defendants-JDs after decision of the Appellate Court, which is quiet

contrary to the stand earlier taken by the plaintiff. Submitting that Courts

below failed to appreciate the evidence in right perspective, prayer is

made to set aside the impugned judgments dismissing the suit of the

plaintiff.

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9 Refuted the aforesaid contentions, it is submitted by learned

counsel for the respondent-plaintiff that this appeal is against the

concurrent findings and that no substantial question of law is involved so

as to make interference by this Court. He further submits that evidence on

record has been correctly appreciated by the Courts below, as plaintiff

was found to be owner in possession of the suit property on the basis of

sale deed Ex.P1 in his favour.

10. I have considered submissions of both the sides and have

perused the record carefully.

11. Ex. P-1 is the sale deed dated 16.11.1969, whereby plaintiff

purchased the plot measuring 52.5 haath x 27 haath from one Chhaju

Ram. On conversion, the measurements works out of 79' x 41'. The

boundaries of the plot as purchased by plaintiff vide Ex.P1 are as under:-

East - Land of vendor (i.e. Chhaju Ram) West - Street North - Kanhiyalal South - Street

12. From the aforesaid sale deed Ex.P-1 relied by the plaintiff, it

is clear that the plot purchased by him, on which he later on raised

construction, had land of vendor Chhaju Ram on the eastern site. More

particularly, it is liable to be noted that there is no street/passage on the

eastern side of the property purchased by him.

13. Ex. P2 is copy of judgment dated 10.12.2004 passed in Civil

Suit No.265 of 2000, titled as Gobind Ram vs Municipal Committee,

Bhiwani, which reveals that plaintiff of this case Gobind Ram alleged

threat of demolition of his house from the officials of Municipal Council,

Bhiwani. Suit for perpetual injunction filed by him, was decreed. Ex.P3 is

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the decree sheet prepared in that case, in which the property, which was

subject matter of judgment Ex.P2 is detailed. The boundaries of his house

given by the plaintiff in that case are as under:

East - Land of plaintiff and house of Pardeep West - Street North - Ghair of Kanhiyalal South - Street

14. It is clear from Ex.P3 that in the suit filed in 2000 decreed in

his favour in 2004 against Municipal Committee, plaintiff had shown

house of Pardeep (defendant of this case) on the eastern side of his house.

Again, it may be noticed that no street was shown by the plaintiff on the

eastern side of his house. Although, defendants of the present case being

not a party to Ex.P2 and P3, still the said documents relied by the

plaintiff, are binding upon him, though these are not binding upon the

defendants of this case.

15. Plaintiff also relied upon a site plan purported to be prepared

by Shri K.P. Parmar, draftsman. In his affidavit Ex.Pw2/A, plaintiff

Gobind Ram referred the site plan as Ex.P4, though no such exhibit is

marked on the site plan available at page 151 of the Trial Court record.

K.P. Parmar, draftsman examined as PW3 did not prove any particular

site plan. He simply stated that site plan attached with the plaint belongs

to the house of the plaintiff-Gobind Ram and the same was prepared by

him (KP Parmar) as per instructions of the plaintiff. During cross-

examination, he candidly admitted that he prepared the site plan by

sitting in the Court, as per the instructions of the plaintiff, without

visiting the spot. It is, thus, clear that site plan relied upon by the plaintiff

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is not proved in accordance with law, as it is does not depict the correct

position of the spot, having been prepared by the draftsman while sitting

in the Court complex and without visiting the spot.

16. Interestingly in the said site plan relied by the plaintiff

(referred by the Courts below as Ex.P4), plaintiff has shown street on the

eastern side of the property ABCDE, alleged by him to be owned and

possessed by him. It has already been noted that neither in the sale deed

Ex.P1 nor in the earlier litigation against Municipal Committee, Bhiwani,

plaintiff had shown any street on the eastern side of his house. Coupled

with the fact that site plan Ex.P4 is not proved on record as per law, there

can be no hesitation to conclude that both the Courts below clearly fell in

error in holding the plaintiff to be owner in possession of the disputed

property, more particularly portion BCDE as shown by red colour.

17. Apart from all above, it is important to notice that suit was

filed by the plaintiff on 05.07.2005. On 08.12.2005, defendants of the

case moved an application for appointment of the Local Commissioner so

as to prepare the map of the disputed property and show the factual

position. In the reply dated 30.01.2006 to this application filed by the

plaintiff, following stand was taken by him:-

"that during pendency of suit the defendants have illegally and forcibly encroached upon the portion shown with letters BCDE in the site plan attached with the plaint and raised unauthorized construction. -----"

18. As PW2, plaintiff Gobind Ram stated during his cross-

examination that aforesaid portion i.e. BCDE was encroached upon by

the defendants on or about 14/15.09.2005. Issues in this case were framed

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on 26.04.2006. The case remained pending till January, 2010, when it

was decreed by the Trial Court. During this entire period, plaintiff never

got his plaint amended so as to seek the relief of mandatory injunction or

decree for possession. Not only this, after decision by the First Appellate

Court on 26.04.2011, the plaintiff filed an execution in October, 2011,

wherein he pleaded as under:

"judgment debtors have been restrained from interfering and taking possession of the property in dispute described in judgment and decree with letters ABCDEF but they have illegally, knowingly, deliberately and forcibly have taken the possession of the part of the property in dispute shown with letters BCDE, in the judgment and decree and site plan after decision of the Appellate Court dated 22.01.2010. It is, therefore, prayed for restoration of possession in favour of DH may kindly be ordered".

19. It is, thus, evident that in the reply dated 30.01.2006 to the

application for appointment of Local Commissioner, stand was taken by

the plaintiff that defendants had encroached upon the portion BCDE and

in his statement as PW2, plaintiff stated the said invasion to have been

made by defendants on 14/15.09.2005 but in the execution filed in

October, 2011, he alleged his forcible dispossession of disputed portion

BCDE after decision of the appeal i.e. April, 2011.

20. in view of the aforesaid contradictory stand, the case of the

plaintiff-respondent is absolutely not believable. Both the Court below

clearly fell in error in believing the evidence of the plaintiff in the

aforesaid circumstances. In fact, plaintiff utterly failed to prove his

possession over the disputed portion BCDE as shown in site plan Ex.P4

as on the date of filing of suit. His contradictory stand as to when he was

allegedly dispossessed from the disputed portion, make his entire case

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unreliable, more particularly when it is established by his own evidence

that in the sale deed Ex.P1 and decree sheet Ex.P3 of earlier litigation, he

had specifically shown the house of defendant Pardeep on the eastern

side of the house and had not pleaded any street on the eastern side of his

house, which is now shown in site plan Ex.P4.

21. It has been held by the Hon'ble Supreme Court of India in

case of "Anathula Sudhakar vs P. Buchi Reddy (Dead) By LRs & Ors."

reported as 2008(2) R.C.R. (Civil)879 that in a suit for permanent

injunction restraining the defendant from interfering with his possession,

plaintiff will have to establish that as on the date of the suit he was in

lawful possession of the suit property and defendant tried to interfere or

disturb such lawful possession.

22. In this case, plaintiff utterly failed to prove his possession on

the disputed portion.

23. As far as the contention of the plaintiff-respondent to the

effect that no substantial question of law is involved in this appeal, it has

no merit. In "P. Chandrasekharan and Others vs S. Kanakarajan &

Others" reported as 2007(3) RCR(Civil) 543, it has been held by the

Hon'ble Supreme Court that though as a general rule, High Court will not

interfere with the concurrent findings of the Courts below, but it is not an

absolute rule. Some of the well recognised exceptions are where (i) the

courts below have ignored material evidence or acted on no evidence; (ii)

the Courts have drawn wrong inferences from proved facts by applying

the law erroneously; or (iii) the courts have wrongly cast the burden of

proof.

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24. In the present case, the discussion as made before clearly

reveal that the Courts below have misread and drawn wrong inferences

from the evidence placed on record.

25. Consequently, the impugned judgments passed by both the

Courts below are hereby set aside. The appeal is accepted with the costs.

The suit of the plaintiff-respondent is dismissed with cost.

December 07, 2022                                (DEEPAK GUPTA)
sarita                                                JUDGE

                   Whether reasoned/speaking:         Yes/No
                   Whether reportable:                Yes/No




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