Suit for ownership – Once the original sale deed has been produced and has come on record, the court cannot refuse to look into said document in favour of the plaintiff merely because it has been produced by the defendant

Mr. Anil Kshetarpal, J. (Oral) - Although, property in dispute is small, however, issue which needs determination is important.

2. Plaintiff-appellant is in the regular second appeal against the findings of fact arrived at by the courts below, dismissing his suit for permanent injunction that he is owner in possession of a 100 sq. yards plot in village Karnera, Tehsil Ballabgarh, District Faridabad pursuant to allotment to him by the Haryana Government as per certificate of allotment dated 05.11.1976. He has pleaded that boundary wall has been constructed and the defendant, who is also having same name but name of father differs, is trying to interfere in his possession.

3. Defendant contested the suit and pleaded that he was allotted plot as he belongs to backward class as per resolution No.29-30 dated 20.08.1975. It was further pleaded that the allotment is in his favour and there is a typographical error while writing father’s name.

4. In the present case, plaintiff as well as defendant have same name, namely Gajraj. Plaintiff-appellant is Gajraj son of Nathu son of Nobat. Whereas defendant-respondent is Gajraj son of Budha.

5. Ex.D1 is certificate of allotment-cum-conveyance deed duly registered by the Sub-Registrar. It is in favour of plaintiff-Gajraj son of Nathu, dated 05.11.1976. Certificate of allotment is signed by Sarpanch, Banwari Lal Panch and other witnesses.

Both the courts have dismissed the suit filed by the plaintiff on two grounds:

(i) Plaintiff has failed to produce original sale deed. He has produced a certified copy from the office of SubRegistrar but permission to lead secondary evidence has not been obtained.

(ii) The original sale deed has been produced by the defendant.

6. In the considered view of this court, the following questions which needs determination are:-

(i) Whether the plaintiff can be deprived of the rights of the property merely because the sale deed is in possession of the defendant, which actually records that it is the plaintiff who is owner?

(ii) Once the original sale deed has been produced and has come on record, can the court refuse to look into the aforesaid document in favour of the plaintiff merely because it has been produced by the defendant?

7. This court has heard learned counsel for the parties at length and with their able assistance gone through the judgments passed by the courts below.

8. Learned senior counsel appearing for the appellant while drawing attention of the court to Ex.D1, the original sale deed, submitted that such sale deed is in favour of Gajraj Son of Nathu and not in favour of Gajraj son of Budha. He further submitted that this sale deed was executed and registered in the year 1976 but the defendant who claims that his parentage has been wrongly recorded in the revenue record has never taken any steps to get it corrected or produced any evidence that the allotment was made in fact in his favour. He further drew attention of the court to mutation entered and sanctioned in the year 1976 on the basis of sale deed wherein also Gajraj son of Nathu has been recorded as owner. He further drew attention of the court to the Khasra girdwaries and jamabandi wherein also the name of the plaintiff is recorded as owner. He has further draw attention of the court to the statement of PW5 Banwri Lal, who was the then Sarpanch of the village and had signed the sale deed who has proved that the allotment was in favour of Gajraj son of Nathu. He has further submitted that DW1-defendant when appeared in evidence has admitted that he is owner of another house which is ancestral in nature. He further submitted that as per the allotment letter, the allotment was in favour of landless workers and Gajraj son of Budha admitted that he is owner of another house in village which has come to him from his ancestors. He further drew attention of the court to the statement of Krishan Lal, who has appeared as DW2, wherein Krishan Lal has stated that some resolution was passed b