JUDGMENT
Kiran Anand Lall, J.
1. The dispute between the parties pertains to a residential plot comprised of 6 marlas area towards the south-east portion of khasra No. 1566 and 2 marlas area towards the north-east portion of khasra No. 1567. The plaintiff claims to have purchased the plot vide registered sale-deed dated 24.6.1981 for Rs. 2,5007- from Girraj Singh and Hari Raj Singh sons of Raghubir Singh. She also alleged that, in fact, she had been in its continuous, open, and peaceful possession, for the last 13 years, to the knowledge of all. She had paid part of its sale-price also, to the vendors, long back. But, as she was poor, the execution of sale-deed was postponed, and it was agreed that sale-deed would be executed when she was in a position to pay the remaining sale-price. She constructed open chhapper and a room on this plot. On 26.7.1981, the defendants came to her house and wanted to disturb her peaceful possession thereof. They beat her son, and a case was got registered by her, in this regard. Even thereafter, they did not desist from interfering with her possession. Therefore, she filed a suit for permanent injunction restraining them from interfering with her possession over the property indicated as ABCD in the site plan, Ex.PW3/2, attached with the plaint.
2. The defendants denied plaintiffs ownership as well as possession over the house. According to them, the disputed plot measures 14 marlas and is owned as well as possessed by them. It is a part of northern-eastern portion of khasra No. 1566. After having purchased it vide registered sale-deed dated 2.5.1978 for Rs. 2,500/-, they have constructed a chhapper, one room, and a cattle shed thereon. They have been residing in it, from the very beginning. Locus-standi of the plaintiff to file the suit was challenged and so was its maintainability in the form it was filed. It was further pleaded that the plaintiff had no cause of action.
3. Trial was conducted in respect of the following issues:
1. Whether the plaintiff is owner and in possession of the suit plot? OPP
2. Whether plaintiff purchased the suit land of paras No. 1 and 2 for a valuable consideration, if so to what effect? OPP
3. Whether plaintiff is in continue possession of the suit property for the more than 12 years, as alleged? If so to what effect? OPP.
4. Whether the suit property is comprised in khasra No. 1566 and 1567, if so to what effect? OPP
5. Whether plaintiff has no locus standi to file the present suit? OPD
6. Whether suit is not maintainable in the present form as alleged? OPD
7. Whether plaintiff has no cause of action against the defendants? OPP
8. Whether defendant No. 1 purchased 14 marlas of land out of khasra No. 1566 vide sale deed dated 2.5.78 for a consideration if so to what effect? OPD
9. Relief.
4. The trial court found merit in the case of the plaintiff and decreed the suit. The lower appellate court, however, did not agree with the verdict. It accepted the appeal and dismissed the suit.
5. This is now regular second appeal filed by the plaintiff-appellant against the verdict of the first appellate court.
6. For the decision of appeal, the following questions were framed by the learned Counsel for the appellant, as the substantial questions of law:
(i) Whether an order passed by an Executive Court Under Section 145 Cr.P.C. is binding upon the civil court on the question of title and right of possession?
(ii) Whether entries made in Jamabandi and Khasra Girdawari and mutation entry can be ignored completely for the purpose of determining the ownership and possession?
(iii) Whether a co-sharer can sell area more than his share?
(iv) Whether suit for partition is the proper course for a co-sharer to obtain his share?
(v) Whether an admission made by party regarding possession in a criminal proceeding is relevant in considering possession in Civil Proceedings?
(vi) Whether an adverse inference has to be taken against the party, who summoned the witness, but does not record his evidence?
(vii) Whether a finding regarding possession can be given by misreading the evidence on record?
7. At the outset, it may be mentioned that lower first appellate court had found that the plaintiff is neither owner nor in possession of the house nor she is owner of the plot over which it exists. It also found that plaintiffs own witnesses, PW 1 Shiv Narain, had admitted in cross-examination that it is Kanhiya defendant who is residing in the house in dispute, for the last 3 years. He had so testified on 12.11.1983. In other words, Kanhiya defendant has been residing in this house since the year 1980. The suit was filed on 29.7.1981. Therefore, even as per the testimony of plaintiff’s own witness, at the time the suit for injunction was filed, it was Kanhiya defendant who was in possession of the house. Kanhiya defendant had purchased the plot underneath the house from Krishan Kumar. The latter, too, while appearing as PW3, deposed that the house existing at the spot is owned by Kanhiya defendant. This house was constructed by DW4 Dulli, who also deposed in favour of Kanhiya defendant. According to him, the house of Kanhiya defendant, consisting of one room, one chhapper, and the western wall thereof, was constructed, by him, on this plot, about 3/3-1/2 years ago
8. Proceedings under Section 145 Cr.P.C. were also taken in respect of this house. And, in those proceedings, too, Kanhiya defendant was found in possession of the house and the claim of Dropadi plaintiff with regard to her possession over it, was found false. It was held in Bhinka and Ors. v. Charan Singh that an order made under Section 145 Cr.P.C. is final and conclusive and is intended to be effective until the party in whose favour the order is made, is evicted in due course of law, The suit, out of which this appeal has arisen, was a suit for permanent injunction, and in such a suit the earlier finding about possession recorded in proceedings under Section 145 Cr.P.C. between them, was relevant, and as such, it was rightly taken note of by the lower appellate court.
9. The question No. 1, as framed by the learned Counsel for the plaintiff appellant for determination in the second appeal, is, therefore, answered accordingly, against the appellant.
10. We may also take note of the fact that Jhaman Dass etc. had earlier filed an ejectment petition against Mool Chand, husband of Dropadi plaintiff, and in that, Dropadi and her son Mohinder Kumar, who were substituted as legal representatives of Mool Chand (after his death), had made a joint statement, Ex.Dl, on 28.8.1981, to the effect that they would vacate the residential house of Jhhaman Dass etc., within six months, as by that time they would complete the construction of their own house. Dropadi, it may be stated, cannot get out of this admission made by her, nor she had, in fact, tried to do so. And once it is so, this statement demolishes her case altogether. Because her specific case in the present suit, which was filed on 29.7.1981 is that she and her family had been residing in the house in dispute for the last 13 years and that, too, as owners, whereas as per her statement Ex.D1 (made on 28.8.1981) she and her family were residing in an other house viz. the house of Jhhaman Dass etc., on 28.8.1981, and at that time, they did not own any other house. The stand taken by her in the present suit was, thus, clearly false.
11. In fact, a glance at the sale-deed, Ex.PW3/l, vide which Dropadi plaintiff claims to have purchased the plot underneath the disputed house, and the site plan, Ex.PW3/2, of the disputed plot, attached by her with the plaint, clinches the matter as the same makes it clear that the two documents pertain to different plots, as boundaries on three sides of these plots are, at complete variance from each other. The boundaries of the two plots, as detailed below, make the position just clear:
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Boundaries as given in sale-deed, Boundaries as given in site-plan
Ex.PW3/l. Ex.PW3/2
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East: Khasara No. 1570 East: Court yard of plaintiff in
Khasra No. 1570
East: Land of houses of vendors West: Thukri Jogi
North: House of Thukri Jogi West: Thukri Jogi
South: Street North: Gali
South: House of Thakarya
12. Since boundaries on the three (out of four) sides of the disputed plot shown in the site plan Ex.PW3/2 are completely different from those of the plot purchased by the plaintiff vide sale-deed Ex.PW3/l, it is clear that the plot purchased by the plaintiff vide Ex.PW3/l had nothing to do with the plot in dispute, shown in site plan Ex.PW3/2.
13. The plaintiff-appellant was, thus, rightly, not held to be in possession of the disputed property and Kanhiya defendant-respondent was held to be in possession of the same. In this view of the matter, entries in jamabandi etc. lose significance altogether as the same are against facts. Otherwise also, such entries are relevant when land to which those pertain is under cultivation, and not when a residential house is constructed thereon.
14. It may also be mentioned that since it was a suit for permanent injunction only, the question as to whether in order to obtain his share, a co-sharer should file a suit for partition, is not required to be determined in this case.
15. Besides, in so far as question No. 6 (supra) is concerned, learned Counsel for the appellant could not refer to any person who was summoned by the respondent (defendant) as a witness but was not examined. Even otherwise, this question is immaterial and need not be answered, since the evidence available on record was sufficient to record a finding in favour of the respondent-defendant, regarding his possession over the suit property.
16. In view of the above, the appeal shall stand dismissed, as being devoid of merit. The appellant would also be liable to costs of the suit, throughout.