KABUL SINGH Vs. GAIN CHAND

JUDGEMENT

(1.) This order will dispose of Regular Second Appeal Nos.2752 & 2753 of 1983 as common questions of law are involved in these appeals and the same have arisen out of common judgment and decree dated 27.9.1983 passed by the District Judge, Hoshiarpur in Civil Appeals No. 316 and 317 of 9.5.1981.

(2.) Briefly stated the facts are that the appellant-Kabul Singh filed a suit being Civil Suit No. 97/79 in the Court of Sub Judge Ist Class, Dasuya for permanent prohibitory injunction restraining the defendant/respondent Gian Chand from interfering into the peaceful possession of the two plots of land being Plot No. 1 shown as ABOD and Plot No. 2 shown as MNOP situated in Village Ahiyapur, Tehsil Dasuya. Boundaries of the plots were also indicated in the plaint. Respondent-Gian Chand also filed a suit in the same Court being Civil Suit No. 98/79 seeking a declaration that he is absolute owner in possession of the plots with further relief of permanent injunction. He also sought an alternative decree that in the event of his dispossession, possession of the plots be given to him. This suit was also with respect to the same plots of land. The appellant's suit came to be registered on 12.9.1978whereas the respondent-Gian Chand's suit came to be registered on 11.9.1978. Vide order dated 21.10.1978, both the suits were consolidated by the trial court. Consequently, RSA No. 2752/1983 :3: the suits were tried together. The trial court framed following issues:-

(3.) Issues no.1 and 1-A were taken up together for consideration. On the basis of the evidence on record, the trial court decided both these issues. Appellant's claim for title over the property is based upon sale deed dated 8.8.1978 executed by one Gurdeep Singh in their favour and the other sale deed dated 25.8.1973 whereby Gurdeep Singh purchased property from Sant Ram. The trial court considered the entire evidence on record. Respondent-Gian Chand claimed the property in dispute to be his ancestral property. It has been the case of the RSA No. 2752/1983 :4: respondent-Gian Chand that the property in dispute was owned Butta Ram son of Arjun Dass. Sant Ram, the original vendor who sold the property to Gurdeep Singh from whom the plaintiff Kabul Singh purchased the property was a marginal witness to the mortgage deed. In the aforesaid mortgage deed, while describing the property, it has been mentioned that on the south side is the house of Moti Ram. Sant Ram appeared in the witness box and proved the sale deed in favour of Gurdeep Singh. He was also confronted with the mortgage deed to which he was a marginal witness. He admitted the boundaries mentioned in the mortgage deed and also stated that the situation at the time of mortgage was the same which continued to be at present. On the basis of these alleged conflicting statements of Sant Ram, the trial court returned a finding that none of the parties has been able to establish their title over the property. Regarding the claim of the appellant herein, the trial court held that since Gurdeep Singh's valid title has not been established, hence the claim of Kabul Singh regarding the ownership of the property cannot be accepted./ Simultaneously, the trial court also held that defendant Gian Chand who is also plaintiff in one of the suits, has also failed to establish his title by any valid documentary evidence. His claim for title on the basis of mortgage deed has also not been accepted. It is relevant to notice that when the suits were RSA No. 2752/1983 :5: filed, appellant filed an application under Order 39 Rules 1 and 2 seeking ad interim injunction against the respondents and sought permission to raise construction over the suit property. The trial court, by interlocutory order, permitted him to raise construction subject to his filing of undertaking that he will remove the construction in the event the suit filed by Gian Chand is decreed.