RSA No.2673 of 1985

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1.IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

RSA No.2673 of 1985

Date of decision 8.2.2011

Nathi Ram

versus

…Appellant

Amar Nath & Others

…Respondents

CORAM : HON’BLE MR.JUSTICE JITENDRA CHAUHAN

Present:

Mr. Raj Mohan Singh Advocate for the appellant

Mr.C.B.Goel,Advocate for the respondents

JITENDRA CHAUHAN.J

The appellant (hereinafter referred to as `the plaintiff'), filed a Civil

Suit No.570 of 1994 before the Sub Judge Ist Class, Karnal restraining the

respondents (hereinafter referred to as `the defendants') from interfering

with his possession and enjoyment of the suit property. It is alleged that

the plaintiff was in actual physical possession over the property as reflected

in para 1 of the plaint. The property in question was covered by four walls

of bricks and he placed therein one wooden khurli, fixed khuntas, fodder

machine etc. It was further alleged that the said property is ancestral

property and the defendants have got no right, title or interest over the suit

property.

The suit was contested by defendant No.1, alleging that the plaintiff

had no locus standi to file and maintain the suit.

It was also asserted that the plaintiff had no cause of action to file the

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suit.

The following issues were framed by the trial court:-

1.

Whether the plaintiff is in possession of the suit

property as alleged? OPP

2.

Whether the plaintiff has got no locus standi to file

and maintain the present suit?

3.

Whether the suit is not legally maintainable? OPD

4.

Whether the plaintiff has got no cause of action to file the

present suit?

5.

Whether the suit is bad for mis-joinder and non-joinder

of necessary parties? OPD

6.

Whether the plaintiff is estopped to file the present suit

by his own act and conduct? OPD

7.

Whether the plaintiff is not entitled to the discretionary

relief as alleged? OPD

To prove its case, the plaintiff, PW1, examined Brij Bhushan,

Draftsman, as PW2, Daya Chand, as PW3 and Surja as PW4.

Beni Parshad, DW1 examined Mandan Gopal, Draftsman, DW2 and

Gurnam Singh, DW3.

While deciding issue No.1, the court below held that the plaintiff

failed to establish his possession over the suit property as alleged by him.

The witnesses examined by the plaintiff did not support him on this point.

Daya Chand, PW3, has stated that the plaintiff was in possession of the suit

property about 1 ½ years back. Similarly, Surja, PW4, also corroborated the

version of Daya Chand, PW2 that the plaintiff was in possession only for

the last about two years. The Ld. courts below noticed the contradictory

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version of the plaintiff, who claimed that chaff cutter and hand-pump were

installed by him 20/25 years ago, and the statements of Daya Chand, PW3

and Surja, PW4 wherein they have deposed that the same were installed by

the plaintiff-appellant about 1 ½-2 years ago. Further, the plaintiff failed to

produce the receipts regarding purchase of hand-pump, chaff cutter and

bricks. Surja, PW4 also stated that earlier Beni Parshad, DW1 was in

possession of the suit property. The said version was also corroborated by

Gurnam Singh, DW3. In such circumstances, the court below held that the

plaintiff was not in possession of the plot in dispute and decided the issue

against the plaintiff. As regards issue No.2 and 3, the court below decided

these issues in favour of the defendants keeping in view the finding of issue

No.1. Issues No. 4,5,6 and 7 were given up by the learned counsel for the

defendants.

Aggrieved against the said judgment of the trial court, the plaintiff

preferred an appeal, which was also dismissed by the first appellate Court.

Learned counsel for the appellant has argued that the property in

dispute is situated in Abadi and the appellant is in possession of the suit

land since time immemorial. He has further argued that the possession of

the appellant is proved on record. There is stron