GURMAIL SINGH Vs. JARNAIL SINGH

JUDGEMENT

(1.) THE plaintiff is in second appeal having lost in both the Courts below. He filed a suit for permanent injunction against the defendants to the effect that they be restrained from interfering in the possession of the plaintiff over the suit property as fully described in the head note of the plaint situated at Village Phulewala, Tehsil and District Muktsar. The plaintiff asserted that he was owner in possession of the suit property as detailed in red colour in the site plan attached with the plaint. When his title and possession was put under threat, he brought suit apprehending his forcible dispossession by the hands of the defendants in an illegal and unauthorized manner. Defendant Nos.1 and 3 were proceeded ex parte by the trial Court. The suit against defendant No.4 was disposed of in April 2006 where he made a statement that he did not have any concern with the property in dispute nor he would interfere in it. Defendant No.2 Bikkar Singh contested the suit. The suit was based on an incorrect site plan. The contesting defendant pleaded that the plaintiff was neither in possession nor owner of the suit property. Infact, Avtar Singh minor son of Teja Singh was owner in possession of the suit property. He prayed for dismissal of the suit.

(2.) THE plaintiff did not file any replication to the written statement of defendant No.2. Six issues were framed the vital one of which was as to possession and entitlement to injunction prayed for. The parties led their evidence in support of their respective cases and after it was recorded and documents produced the evidence were closed by order.

(3.) TO prove that he was owner in possession, the plaintiff examined PW -1 Mohinder Singh. In his testimony, he deposed that the suit property measures 10 Marlas which is bounded on the eastern side by a pond, western side by a passage, on the northern side by a vacant plot of Ginder Singh and on southern side lay the property of Balwinder. The suit property is situated in the Lal -lakir of Village Phulewala. The house of plaintiff existed over it, which was a katcha one but had sometime past and had crumbled down. But he was in possession of the vacant plot without any interruption. PW -2 Sohan Lal deposed in favour of the plaintiff regarding ownership and possession over the suit property. After PW -1 and PW -2 filed their examination -in -chief by way of affidavits they did not appear for facing cross -examination. Not having faced cross -examination, the oral evidence did not qualify as legally admissible evidence and could be read against the defendants as rightly concluded by the court below. PW -3 Jagjit Singh spoke in favour of the plaintiff that the latter remained in possession over the suit property. However, the witness in cross -examination deposed that he had not seen any document regarding ownership of the plaintiff over the property in dispute. He did not know Avtar Singh but he knew Teja Singh father of Avtar Singh, who was said to have resided with the brother of plaintiff Gurmail Singh. He admitted in his cross -examination that the plaintiff had not been residing in the suit property at present i.e at the time the statement was recorded in court. PW -4 Sukhdev Singh appeared in the witness box and deposed that plaintiff was not in possession of the suit property. He deposed that there was neither house nor walls existing in the suit property. The plaintiff had not resided over the suit property for ten years past although he was in possession of it. The property is within the red line of the village. He also did not know of any Avtar Singh.