CHANDER BHAN Vs. PEHLAD

JUDGEMENT

(1.) This is a second appeal brought against the judgment dated the 10th of August 1972 of Shri H.C. Goel, Addl. District Judge, Delhi (as his Lordship then was) by which he has accepted the appeal filed against the judgment and decree dated 15th of March 1971 passed by Shri Sagar Chand Jain, Sub Judge 1st Class, Delhi, and that he had set aside the judgment and decree of the lower court and dismissed the suit brought by the appellants seeking injunction against the defendants.

(2.) Briefly stated the facts of the case are that the appellants had instituted a civil suit seeking relief of permanent injunction restraining the defendants from inetrfering with the peaceful possession of the plaintiffs in respect of the plot Nos. 30 and 17 in village Rithala in the Union Territory of Delhi and also restraining them from enforcing their way through the said plots. In all there were 11 defendants in the suit and one of them was one Pehiad. The case set up by the plaintiffs in brief is that the plaintiffs are owners of the house built on plot No. 30 in village Rithala and that the plot No. 17 is quite adjacent to their house and it had been allotted to the plaintiffs by the Custodian since the year 1947 and they have been paying damages or lease money to the Custodian since then. It was pleaded that there is no open space or passage in between plot Nos. 30 and 17 and that there existed a common passage beyond the boundry of plot No. 17 on north side for going to the well etc. They pleaded that the defendants being the influential people of the village have threatened to use the said plot No 17. as passage to which they have no right and proceedings under Sectition 147 of the Code of Criminal Procedure have also been taken which are pending in the Court of Shri D.C. Misra, Revenue Assistant Magistrate and proceedings under Sections 107/145 of the Code of Criminal Procedure have also been taken between the parties. All the defendants had filed a common written statement pleading that the plaintiffs are the owners of plot No. 30 but they pleaded that the house constructed on the said plot existed beyond the boundry of the said plot, encroaching upon a public thorough fare. It was also pleaded that one Badlu was the owner of plot No. 30 who migrated to Pakistan 1948 and that the only passage to the said house of Badlu is from the public thorough fare and all the houses constructed adjacent to the Badlu's house are in row and they all open in the public thorough fare. It was also pleaded that there was no plot No. 17 located adjacent to plot No. 30 and that only a public passage or a thorough fare stands located adjacent to plot No. 30, so it was denied that the plaintiffs have taken any said plot No. 17 adjacent to the plot No. 30 from the Custodian. Following issues arose from the pleadings :

(3.) The learned Sub Judge had given the findings that in view of Ex.P-2, copy of Shajra sakni, it is porved that the plaintiffs are lessees of the Custodian in respect of plot No. 17 existing adjacent to the plot No. 13 and the same cannot be considered to be a public thorough fare. The first appellate court, however, gave the finding that Ex. P-2, is not properly proved as it is stated to be only an extract of shajra sakni and extract of shajra could not be tendered in evidence. The first appellate court gave the finding that, in fact, the plaintiffs have failed to establish that they have any exclusive right in the said plot in dispute. I have examined Ex. P-2 and find that it is not a copy of any shajra iakni prepared by any revenue official so that any presumption of truth could be attcahed to such a document under Section 44 of the Punjab Revenue Act. This document appears to have been issued by the Rehablitation Department but it does not make it clear as to who has prepared the original of this document. This document also shows that the house No. 29 which is located in the eastern side of plot in question has a door opening in this plot. If that is so how it can be said that the plaintiffs have been given any exclusive right of user of this plot. Be as it may, this document is not a copy of the revenue record which could be considered as a public document and could be taken in evidence without any mode of proof. This document is termed as shajra sakni. It is not shown as to who had prepared the original shajra and whether the said document has been prepared by any official in performance of his official duties. It is also not shown to whom this plot No. 17 originally belonged and how it came to be vested in the Custodian. So, as a matter of fact, the plaintiffs have not brought on record the best evidence in the shape of the record of the Custodian showing that this particular plot belonged to some evacuee and that it vested in the Custodian and that the Custodian has allotted this plot to the plaintiffs. In the absence of the best evidence which could be produced by the plaintiffs an inference has to be drawn that there is no such documentary evidence to show that, in fact, this plot ever vested in the Custodian and that the Custodian at any time allotted this plot to the plaintiffs. Oral testimony of PW-2 cannot be accepted as it is sought to be relied upon by the counsel for the appellants. After-all PW-2 does not have any personal knowledge about the facts of the said plot and he might have deposed some facts on the basis of some official record but then the contents of record cannot be proved by giving oral testimony. Hence I hold that the plaintiffs had miserably failed to prove that they have any exclusive rights in the plot in dispute or that they have' exculsive possession of the plot in dispute.