BALRAJ SINGH Vs. MAHAN SINGH

JUDGEMENT

(1.) After hearing the counsel for the parties I am of the view that the Courts below did not consider the points involved in the case in correct perspective. The first point whether any of the parties to this litigation has been able to prove to the satisfaction of the Court about the ownership and the second point is whether the plaintiff is in possession or the defendant. Even if it is found that none of the parties has been able to prove their ownership then only point, which would remain for determination would be as to which of the parties is in possession. If plaintiff is found to be in possession he would be entitled to a decree for injunction and in case defendant is found to be in possession then the suit is to be dismissed. It is also possible that on the point of ownership the Court is not able to give a definite finding. In that situation it can leave the point of ownership open to be gone into in appropriate proceedings and can dispose of the suit on the basis of possession only. See M. Kallapa Setty v. M.V. Lakshminarayana Rao, 1972 AIR(SC) 2299 and Sadhu Ram v. Gram Panchayat Pastana, 1984 AIR(P&H) 262.

(2.) The trial Court considered both these matters together and held that the plaintiff has been able to prove his case and decreed the suit. The lower appellate Court gave a verdict that the plaintiff has not been able to prove his ownership and possession and allowed the appeal and dismissed the suit. the lower appellate Court did not record a finding that the defendant was in possession. It remained content merely by saying that he plaintiff failed to prove ownership and possession. To my mind this is not the proper way to decide the controversy between the parties. The evidence of the parties should be evaluated and a definite findings should be given as to which of the parties is in possession and that would necessarily mean that the other party is not in possession.

(3.) For the reasons recorded above, this appeal is allowed, the judgments and decrees of the two Courts below are set aside and the matter is remitted to the trial Court to hear the arguments afresh and give definite findings separately of ownership and possession. If on the point of ownership no definite finding can be given, it can leave the point open but regarding possession a definite finding must be given as to which of the parties is in possession because no third party is in possession.