Possessory title cannot be claimed if the timing of property purchase and suit filing does not support it. The court can raise a presumption under Section 114 of the Evidence Act against a party withholding evidence.

1. - This is Civil Second Appeal filed on behalf of the plaintiff-appellants under Section 100 of the Code of Civil Procedure, 1908 against the judgement and decree dated 18.01.1984 passed by the court of Additional District Judge No. 1, Bharatpur by which, it has dismissed the appeal filed by the plaintiff-appellants and upheld the judgement and decree dated 29/07/1977 passed by the court of learned Additional Munsiff, Bharatpur by which, suit has been dismissed filed by the plaintiff.

2. The brief facts giving rise to this civil second appeal are that plaintiff-appellant has filed a suit for declaration and injunction as regards to the disputed roof of the shop and contention of the appellant was that shop of the defendant was a part of the house of the appellant. The main gate of the house, which is in the shape of a haveli, is in possession of the appellant and only through this gate, one can reach on the roof of the shop of the defendant. The roof is in possession of the plaintiff since long. The room has been constructed over the roof. It has been purchased by the plaintiff-appellant from Smt. Dropdi. He was having possessory title over the roof. Defendant has relied on the documents Ex. A1 to Ex. A3 but nothing has been said as regards to the fact that these documents are related to the disputed property and there cannot be any presumption that ownership of the roof would go along with the property. The court below has not weighed the evidence in right perspective and findings are perverse.

3. Per contra, the contention of the defendant respondent was that there is no question of possessory title as the property has been purchased in 1967 and the suit has been filed in 1972. There was no settled possession of the plaintiff. Documents, which could show the ownership of the plaintiff have not been submitted and hence, inference should have been taken against the appellant. Ex. A1 to Ex. A3 are the documents from which the disputed property has been purchased and no objection could be raised as regards to these documents. These documents are 30 years old and submitted by proper possession. Both the courts below are concurrent in finding and no substantial question of law has been raised. Hence, the appeal be dismissed.

4. On 25.03.1985, on following substantial question of law, the appeal has been admitted:-

(1) Whether the appellant can be said to be owners of the disputed roof by virtue of sale-deed in their favour coupled with presumption under Section 114 of Evidence Act?

(2) Whether the lower courts committed illegality and error of law in deciding the case and as such the judgements are perverse?

5. Heard learned counsel for the parties, perused the impugned-judgements as well as original records of the case.

6. The case of the appellant is that he has purchased the roof of the disputed shop by sale-deed. Sale-deed has been submitted as Ex.1 through which he has purchased the same from Smt.Dropdi. In Ex.1, there is no specific narration that roof of the disputed shop has also been sold to the plaintiff-appellant. For the sake of argument, it can be assumed that roof has also been sold to the plaintiff-appellant but still he has to show that Dropdi was also owner of the disputed roof and was competent to sell it to him but no documentary evidence has been submitted to prove this fact. Dropdi has stated that shops have been sold out but roofs have been retained by them but to prove this fact, no documentary evidence has been submitted. The courts below have considered the fact that plaintiff-appellant has accepted that there are sale-deeds and mortgage-deed, which could establish his title but no document has been submitted. Apart from it, some portion of the property has been purchased from Nazool Department but no 'sanad' or document has been submitted to prove his contention. It has also been submitted that one other shop was purchased from Phoolchand but judgement Ex. A6 clearly speaks that roof of the shop has b