Punjab-Haryana High Court
Ram Sarup Etc vs Amar Nath (Deceased) Represented By Mam ... on 14 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:038836
RSA-529-1993 (O&M) 1 2024:PHHC:038836
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-529-1993 (O&M)
Reserved on : 01.02.2024
Date of decision: 14.03.2024
Ram Sarup and others
....Appellants
Versus
Amar Nath (deceased) represented by Mam Kaur and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr.C.S.Singh, Advocate for the appellants
Mr. Rajender Kumar, Advocate for
respondent no.1 (a) to (d)
ANIL KSHETARPAL, J
1. This is defendant's Regular Second Appeal against the
judgment and decree passed by the First Appellate Court, which in turn,
has reversed the judgment and decree passed by the trial court.
2. In order to comprehend the issue involved in the present
case, some relevant facts, in brief, are required to be noticed.
3. The plaintiffs (respondents) filed a suit for the grant of
decree of permanent injunction claiming that they are owners in
possession of the suit property described in the attached site plan since
time immemorial and they are using the same for tethering of their cattle
and for storage of cow dung cakes and kuraris. The defendants, while
contesting the suit, submitted that the property with the boundaries as
claimed in the plaint does not exist and the site plan submitted by the
plaintiffs is wrong. The defendants produced another site plan. It was
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claimed that the defendants are owners in possession and the property is
situated in Thola Todar in village Bakhali and defendants are biswedars
of Thola Todar and as such owners in possession. Whereas the plaintiffs
are neither the biswedars of Thola Todar nor in possession of the same.
Replication was filed by the plaintiffs. During the pendency of the suit,
on an application given by the plaintiffs, the trial court appointed the
Local Commissioner, who after visiting the spot, prepared a layout plan
of the disputed property. He also submitted report that when he visited
the spot he found some ladies were making cow dung cakes and some
other persons were also present at the spot. The plaintiffs in order to
prove their case examined PW1 Megh Nath and PW2 Amar Nath
besides examining PW3 Sita Ram Draftsman. On the other hand, the
defendants examined Suraj Bhan and Banta Ram as DW1 and DW2.
4. The trial court dismissed the plaintiffs' suit after recording a
positive finding that the layout plan submitted by the defendants
matches with the layout plan produced by the defendants. The court also
noted that the plaintiffs have failed to produce any independent witness
whereas defendants have examined Banta Ram, who is an independent
witness. Thus, the plaintiffs' suit was dismissed. It may be significant
to note that the plaintiffs produced a copy of petition filed by Jeet Ram
under Section 7 (2) of the Punjab Village Common Lands (Regulation)
Act, 1961, (hereinafter referred to as '1961 Act') against the plaintiffs
seeking their eviction, which was summarily dismissed on 31.11.1991.
Both these documents were marked as 'D' and 'F'. The plaintiffs did
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not prove the same. Hence, these documents were not admitted in
evidence.
5. The First Appellate Court reversed the judgment and decree
passed by the trial court on the following grounds:-
i) the testimony of the defendants that they are owners in
possession since the time of their forefathers is beyond pleadings
ii) no house has been constructed in the plot in question.
iii)Local commissioner's report has not been tendered in
evidence.
6. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook alognwith the
scanned copy of the requisitioned lower court record.
7. On the one hand, the learned counsel representing the
appellants submits that the judgment of the First Appellate Court suffers
from multiple errors. He submits that in para 2 of the written statement,
the defendants have specifically pleaded that they are owners in
possession of the property as the suit property is situated in Thola Todar
of village Bakhali and they are the biswedars of the Thola Todar whereas
the plaintiffs are not. He further contends that the report of the Local
Commissioner is not required to be tendered in evidence as it was part of
the record.
8. On the other hand, the learned counsel representing the
respondents has submitted that the plaintiffs' possession is proved from
the report of the Local Commissioner and the order of the Assistant
Collector.
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9. The learned counsel representing the parties have also filed
their written note of submissions.
10. This Court has analyzed the arguments while evaluating the
trial court record. Before a decree for permanent injunction is passed,
the court is required to examine the following questions:-
i) whether the party seeking injunction has any right, title or
interest in the same.
ii) whether the possession of the party seeking injunction is
legal or illegal or unauthorized.
iii) the quality of evidence.
11. It will not be appropriate to grant the decree for permanent
injunction just without establishing that the party seeking possession has
some right, title or interest in the property. Their possession should have
some legal basis.
12. If we analyse the reasons given by the First Appellate Court,
it becomes evident that the First Appellate Court has erred in accepting
the appeal. The defendants, while filing the written statement, specially
in para 2 of the plaint, have specifically pleaded that they are owners in
possession of the suit land, which is situated in Thoda Todar of village
Bhakhali and they are the biswedars of the Thola Todar whereas the
plaintiffs have no connection with the same. Hence, it was not
appropriate for the First Appellate Court that the defendants have not
pleaded that they are owners in possession.
13. The First Appellate Court has also erred in observing that
no house is constructed in the plot and therefore, the defendants have
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failed to prove their case. It may be noted here that the defendants are
also not claiming that any building has been constructed upon the plot in
question. They are only claiming to be owners in possession of the
property.
13. Similarly, the First Appellate Court has erred in recording
that the Local Commissioner's report has not been tendered in evidence.
The Local Commissioner nominated by the court is an officer of the
Court. Once he submits the report, the same becomes the part of the
record. That is required to be formally proved by examining the Local
Commissioner. Any party having objection to the report can summon
the Local Commissioner and cross-examine. However, the report of the
Local Commissioner, being part of the evidence, is not required to be
formally tendered in evidence.
14. It may be noted here that the learned counsel representing
the plaintiff has relied upon the order passed by the Assistant Collector
on 31.01.1991. The aforesaid order has neither been proved nor
exhibited. In any case, this Court has examined the aforesaid order
which is a short order consisting of one para dismissing Jeet Ram's
petition under Section 7 of the '1961 Act'.
15. Moreover, as already noticed, the plaintiffs are claiming
decree for permanent injunction restraining the defendants from
interfering in their possession. Their case is to be effect that they are
using the suit land for tethering of cattle and storage of cow dung.
Tethering of cattle and storage of cow dung is not sufficient to prove the
exclusive possession, particularly, when in the villages wherever there is
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an open plot or land available, the villagers do tie their cattle and store
their cow dung cakes. Moreover, when Megh Nath PW1 appeared in
evidence he admitted that the site plan submitted by the defendants is
correct. He has never purchased the suit property. Similarly PW2 Amar
Nath has stated that approximately 9/10 persons tie their cattle. Such
possession of the property does not amount to ouster of the owners, who
has some right, title or interest in the same.
16. It may be noted here that the plaintiffs came to the Court for
the grant of decree of permanent injunction. The heavy burden is laid
upon them to prove their case. They failed to prove any right, title or
interest in the property. The trial court, on appreciation of evidence,
dismissed the suit. Layout plan produced by the plaintiff did not match
with the layout plan prepared by the Local Commissioner. Hence, they
did not come to the court with clean hands. Plaintiff-Megh Raj admitted
that he has not purchased the property. In these circumstances, it was
not appropriate for the First Appellate Court to reverse the judgment and
decree passed by the trial court.
17. Keeping in view the aforesaid facts and discussion, the
appeal is allowed. The judgment and decree passed by the First
Appellate Court is set aside and that of the trial court is restored.
18. All the pending miscellaneous applications, if any, are also
disposed of.
14.03.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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