YAADRAM Vs. VIDHA DEVI AND ORS.

JUDGEMENT

(1.) THE suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 19.04.2005. Appeal preferred against the said decree failed and was dismissed on 15.12.2008. This is how, defendant No. 1 is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) IN a suit filed by the plaintiff -Manohar Lal, he prayed for a decree for injunction claiming that he and the proforma defendants were owners in possession, in equal shares, of the suit property measuring 3 kanals 11 marlas, comprised in Khasra No. 7, situated in Village Bewal, Tehsil and District Mohindergarh, and defendants be restrained from causing any interference in his peaceful possession or raising any kind of construction over the suit property. It was averred that Jamabandi for the year 1995 -96 and Mutation No. 1310 dated 26.11.1997 showed plaintiff and proforma defendants to be owners in possession of the suit property. They had stored fuel, Roori, etc. in the suit land and the same was being used as Guwara. As defendants had no concern with the suit land and were still adamant to interfere in the peaceful possession of the plaintiff, thus, the suit.

(3.) TRIAL Court, on an analysis of the matter in issue and the evidence on record, found that Jamabandi and also the revenue record produced by the plaintiff showed that Chhotu Ram son of Medha Ram was owner of the suit property and the same was exclusively owned by him. Post death of Chhotu Ram, the suit property was inherited by plaintiff and proforma defendants in equal shares. Accordingly, mutation (Exhibit P2), as regards the suit property, was sanctioned in favour of the heirs of Chhotu Ram. Resultantly, it was concluded that plaintiff and proforma defendants were owners in equal shares of the suit land. They were held to be in possession of the suit property. In reference to the report of the Local Commissioner, who vide report dated 30.05.1999 had found that the defendants had placed dung cakes and rubbish etc. over a part of the suit land, it was observed that the same was hardly of any consequence as Local Commissioner was never asked to opine as regards possession over the suit property. Thus, he exceeded his jurisdiction. Accordingly, it was observed that the question of possession was to be determined by the Court and no reliance could be placed upon the report of the Local Commissioner. Even otherwise, it was observed that mere act of user such as throwing rubbish, placing dung cakes, etc. would not constitute possession and the same could never be regarded as an established possession. Since, plaintiff and proforma defendants were found to be exclusive owners in possession and were cultivating the suit land, thus, it was established that the suit property was owned and possessed by them. As regards writing (Exhibit DW5/B), vide which the suit property was alleged to have been equally divided between Chhotu Ram and Parmanand, it was observed that no demarcation of the land was mentioned therein, no particular khasra numbers were referred to and no date on which the said writing was executed was mentioned. Further, the document was not attested by any witness. Still further, the document in question was an unregistered document and was not written on a proper stamp paper, in terms of the provisions of Section 35 of the Indian Stamp Act, 1899 and, thus, could not be admitted in evidence. Therefore, plea of the defendants that they were owners in possession of 1/2 share of the suit property remained unsubstantiated. Resultantly, the suit was decreed.