R.S.A. No.2546 of 2008 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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R.S.A. No.2546 of 2008
Date of Decision:10.12.2008
Chuni Lal
.....Appellant
Vs.
Madan Lal and another
.....Respondents
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Gulshan Mehta, Advocate for the appellant.
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JUDGMENT
HARBANS LAL, J.
This appeal has been directed against the judgment/ decree
dated 9.5.2008 passed by the Court of learned Additional District Judge,
Hisar, whereby he dismissed the appeal preferred against the judgment/
decree dated 25.9.2006 rendered by the Court of learned Civil Judge (Junior
Division) Hisar vide which he dismissed the suit of the plaintiff.
Tersely put facts giving rise to the suit are that House No.196/2
measuring 976 square yards shown in the site plan situated in Barwala,
Tehsil and District Hisar was allotted to the father of the plaintiff and one
Roop Chand son of Bakhtawar by the custodian Department. The same was
got partitioned by Roop Chand and Parsa Ram, father of the plaintiff. After
Parsa Ram’s death, Madan Lal, the plaintiff and defendant No.1 became the
owner in possession in the half share of Parsa Ram. The plaintiff and
Madan Lal- defendant have sold some portion of this house to Thau Ram in
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the year 1972-1973. The plaintiff and Madan Lal- defendant are the owners
in possession of the remaining portion of the suit house marked by letters A,
B, C and D in the site plan attached with the plaint in equal shares which is
not partitioned. Madan Lal- defendant wants to alienate the whole or
specific portion of the property in question to Gurmail Kaur, defendant
without getting it partitioned. On 21.12.1999 he threatened the plaintiff that
he would sell the specific portion or whole of the property in question to
her, without getting it partitioned. The plaintiff requested him to desist
from doing so, but in vain. On these allegations, the suit has been filed for
permanent injunction. In answer to this claim, Madan Lal- defendant in his
written statement has inter-alia pleaded that the house No.196/B was owned
by the father of the answering defendant. Their father expired in the year
1972, whereafter they both sold the said house vide registered sale deed
No.670 dated 21.8.1974 to Atam Parkash and Suresh Chand, sons of Thau
Ram and also handed over the possession of the same. Traversing other
facts in the plaint, it has been prayed that the suit may be dismissed.
Gurmail Kaur, defendant was proceeded against ex parte.
The following issues were framed by the learned trial Court:-
1. Whether the plaintiff is owner in possession over the
property in question as alleged? OPP
2. If issue no.1 is proved, then plaintiff is entitled to get
decree of permanent injunction as prayed for? OPP
3. Whether the suit is not maintainable? OPD
4. Whether the plaintiff has no locus standi? OPD
5. Whether the plaintiff has not come to the court with
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clean hands and twisted the material facts? OPD
6. Relief.
After hearing the learned counsel for the parties and examining
the evidence on record, the learned trial Court dismissed the suit. Feeling
aggrieved therewith, the plaintiff went up in appeal, which was dismissed
by the First Appellate Court. Being undaunted and dissatisfied therewith,
the plaintiff has preferred this second appeal.
I have heard the learned counsel for the appellant, besides
perusing the findings returned by both the Courts below.
Mr. Gulshan Mehta, Advocate appearing on behalf of the
appellant maintained that DW3 Atam Parkash under the stress of cross-
examination has stated that the house which was purchased by his father
was a part of House No.196-B, i.e., the property in dispute and rest of the
portion of this house is with Madan Lal- defendant and the area of his house
is approximately 240 square yards. Atam Parkash (sic) has admitted that the
total area of the plot which was allotted to Parsa Ram, father of the
appellant as well as Madan Lal- defendant was approximately 940 square
yards. Thus, both the Courts below have not appreciated the evidence of
this witness in a desired manner. The learned trial Court was wrong in
holding that at least one or two boundaries of the suit house as described in
the heading of the plaint do not tally with the house sold to Atam Parkash.
Hakim Chand DW4 has admitted in his cross-examination that his house is
situated on one side of the disputed house and on the other side is the house
of Atam Parkash and thus, this evidence establishes that the disputed
property is a part of House No.196/B and whole portion of the said house
R.S.A. No.2546 of 2008 -4-
was not sold to Atam Parkash. In these premises, the findings returned by
both the Courts below are liable to be reversed. These contentions are hard
to swallow. Ex.D.5, copy of the sale deed dated 21.8.1974 brings out that
the entire house has been sold to Atam Parkash and others by the plaintiff as
well as Madan Lal- defendant. Atam Parkash (sic.) has made contradictory
statement as in one breath, he testified that the house in question was not
purchased by them in its entirety and in the next breath, he has deposed that
they had purchased the entire house. Thus, his evidence is not conclusive
on this fact. The appellant by summoning Halqa Patwari or an official of
the Custodian Department could have proved that he as well as his brother
Madan Lal- defendant had not sold the house in entirety to Atam Parkash
and others. To have injunction sought for, it was imperative upon the
appellant to prove his possession over the property in dispute. To his utter
dismay, he has not adduced any cogent, convincing, clear evidence for
making out the case for grant of injunction. The learned trial Court has
observed that “at least one or two sides of the house detailed and described
in the head note of the plaint must have the same boundaries as shown as
that of the House No.196/13 in the sale deed Ex.D.5. But the boundaries of
the house bearing Custodian No.196/B shown in the sale deed Ex.D.5 do
not tally with the boundaries of the house described in the headnote of the
plaint.” In contest, between the documentary and oral evidence, normally,
the documents are to be believed, as they seldom lie. The recitals in Ex.D.5
cannot be done away with by the oral evidence of the plaintiff. Ex.D.5
when pitted against the oral evidence, outweighs the latter. The Civil Court
has to go by preponderance of probabilities. In these circumstances, the
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plea of the plaintiff that only some portion of the house was sold, remains
unproved.
In view of the above discussion, the concurrent findings
returned by both the Courts below warrant no interference. This apart, no
substantial question of law arises for determination by this Court.
Consequently, this appeal is dismissed.
December 10, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No