Dismissed

Khazana and Ors. v. Wazir Singh

Punjab & Haryana HC19 Jan 2010RSA/4682/2009

Case brief

AI extract

What is this about?

Defendant's second appeal challenging civil suit decree restraining dispossessing plaintiff. High Court dismissed appeal holding evidence was beyond pleadings when plaintiff was not confronted with documents, affirming lower courts reliance on plaintiff's testimony on possession and ownership.

What did the court decide?

Application/second appeal dismissed, judgment and decrees of courts below affirmed.

Khazana and Ors. Vs Wazir Singh — Partition | Punjab & Haryana HC (2010)

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RSA No.4682 of 2009(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.4682 of 2009(O&M) Date of decision: 19.1.2010

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Khazana and others

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......Appellant(s)

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Versus

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Wazir Singh

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......Respondent(s)

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CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG

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Present: Mr. Balraj Singh Dhull, Advocate for the appellants.

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Rakesh Kumar Garg, J. CM No.14082-C of 2009

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Application is allowed subject to all just exceptions.

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RSA No.4682 of 2009

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This is defendants' second appeal challenging the judgment and decrees of the courts below whereby the suit of the plaintiff-respondent has been decreed restraining the defendant-appellants from dispossessing the plaintiff from the suit property or from interfering into his possession foricbly or illegally except in due course of law.

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Briefly stated, as per the averments made in the civil suit, the plaintiff-respondent was owner in possession of the suit property situated within the Abadi Deh of village Mundri, Tehsil and District Kaithal. It was alleged that the defendant-appellants were threatening to dispossess him from the suit property forcibly and illegally, without having any right, title and interest over the suit property. They came on the spot on 15.4.2002. However, with the timely intervention of the plaintiff-respondent as well as respectables of the village their action was foiled. The defendantappellants refused to admit the claim of the plaintiff-respondent. Hence,

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RSA No.4682 of 2009(O&M)

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this suit.

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Upon notice, the defendants filed joint written statement taking various preliminary objections. On merits, the case of the plaintiffrespondent was denied and it was stated that it was the plaintiffrespondent who was threatening to dispossess the defendants from their peaceful possession. Defendant No.1 was the owner and had every right, title and interest in the suit property for the last many years and thus, dismissal of the suit was prayed for.

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After evidence of the parties was concluded, the trial Court on appreciation of the same held that the plaintiff was owner in possession over the suit property and thus, the suit was decreed.

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Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellants filed an appeal which was dismissed by the Lower Appellate Court vide impugned judgment and decree dated 14.9.2009. While dismissing the appeal, the Lower Appellate Court observed as under:-

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“In the plaint the plaintiff had specifically pleaded that he is the owner in possession of this house the boundaries of which were detailed in para No.1 of the plaint. There is no dispute with regard to the identity of the house. It is also not in dispute that it was situated within the 'Abadi Deh' of village Mundri. That being so there could not be any authentic proof of the title of this house. As rightly observed by learned lower court, for deciding this suit the court was only required to see as to which of the parties was in possession of this house. In the written

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statement, the defendants only pleaded that the defendant No.1 Khazana was the owner in possession

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RSA No.4682 of 2009(O&M)

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of this house. They also denied the claim of the plaintiff that he was owner in possession of this house and simultaneously pleaded that let the plaintiff prove his title and possession on this house. As pleaded by the defendants the plaintiff having appeared in the witness box as PW-1 categorically deposed that he was owner in possession of this house. He denied the suggestion that he had sold this house to defendant No.1 ten years back. He was not confronted with the documents Ex.D1 and Ex.D1/A relied upon by the defendants to establish their claim that the defendant No.1 had purchased this house from the plaintiff. In such a situation when the plaintiff was not confronted with these documents the same cannot be read against him more particularly when no mention with regard to these documents was made in the written statement. It is settled law that the evidence beyond pleadings cannot be looked into . In such a situation learned lower court was justified in discarding these documents.

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Be that as it may, in the written statement the defendants pleaded that the defendant No.1 was the owner in possession of the house in dispute i.e. the house which was detailed in para No.1 of the plaint. But the defendant Khazana when appeared in the witness box admitted in his cross-examination that he had purchased only two rooms out of this house vide above two documents and the remaining two rooms were still with the plaintiff. In that way he admitted that the plaintiff

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RSA No.4682 of 2009(O&M)

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was in possession of half of the house as detailed in para No.1 of the plaint as also reflected in the site plan Ex.P1.

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Adverting to the remaining half portion of this house again, I have little hesitation in holding that defendant Khazana admitted in the end of his crossexamination that the same was lying vacant. When that is so certainly none of the defendants could be taken to be in possession thereof. On the other hand, the plaintiff having appeared in the witness box as PW1 testified that he is in possession of this house as owner of the same and has never parted with its possession. Similar was the statement made by Sh. Hari Chand PW2. This evidence of the plaintiff inspires confidence. According to the defendants, the plaintiff was the owner in possession of whole of this house. They claimed that the defendant No.1 had purchased half of this house vide documents Ex.D1 and Ex.D1/A. A bare perusal of these documents would reveal that neither they could be taken to be a lease deed nor they could be termed to be a sale deed. In neither of these two documents the possession of the house in dispute is shown to have been delivered to defendant No.1 at any point of time. In such a situation, when these documents were not shown the light of the day until they were produced by the defendants in their evidence nor the plaintiff was confronted with these documents nor any mention thereof was made in the pleadings by the defendants

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RSA No.4682 of 2009(O&M)

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certainly the lower court did not commit any error in placing reliance upon the oral testimony of the plaintiff as against these documents. There is no reason to deviate from the conclusion arrived at by the lower court after scanning the evidence threadbare. The well reasoned findings recorded by the lower court on this issue No.1 do not call for any interference by this Court while exercising the appellate jurisdiction. Those findings are accordingly affirmed.”

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Still not satisfied, the defendants filed the instant appeal challenging the judgment and decrees of the Courts below.

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Learned counsel appearing on behalf of the appellants has vehemently argued that both the Courts below have misinterpreted, misconstrued and misread the oral and documentary evidence placed on the record by the appellants and thus, reached at wrong conclusions which have caused manifest injustice to the appellants and therefore, the impugned judgment and decrees are liable to be set aside.

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Elaborating further, learned counsel for the appellants has also argued that the Courts below have given undue weightage to the oral testimonies of the plaintiff-respondent over the documentary evidence produced on record by the appellants from which it has been proved that the appellants are the absolute owners in possession of the property in dispute and thus, the judgment and decree of the Courts below are liable to be set aside.

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On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal:-

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“(i) Whether the appellant/defendants are the owner

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RSA No.4682 of 2009(O&M)

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of the disputed property which was purchased by the appellant/defendant No.1?

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(ii) Whether the exhibited documents have much evidentiary value over oral testimony?

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(iii) Whether finding of both the learned courts below on issues No.1 to 5 are wrong and are liable to be set aside by this Hon'ble Court?”

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I have heard learned counsel for the appellants and perused the impugned judgments and decrees. I find no force in the contention raised by the learned counsel for the appellants.

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The only defence taken by the appellants in the written statement was that defendant No.1 was the owner in possession of the house and it was the plaintiff who was threatening to interfere into his possession. In support of this plea, the appellants have produced on record an affidavit Ex.D-1 and document Ex.D1/A and have submitted that on the basis of these documents, the plaintiff-respondent had virtually sold the property in dispute to defendant-appellant No.1 Khazana and in view of these documents, the plaintiff-respondent was left with no concern with the house in dispute.

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However, in the pleadings, the appellants have not pleaded that the house in dispute was sold by the plaintiff-respondent at any point of time vide these documents referred to hereinabove and in view thereof, this evidence was beyond pleadings and the Courts below were justified in ignoring the same and relying upon the consistent oral testimony of the PWs and therefore, the Courts below have not committed any error while deciding the case in favour of the plaintiff-respondent.

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Moreover, the plaintiff was never confronted with the documents Ex.D1 and D1/A relied upon by the appellants to establish their

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RSA No.4682 of 2009(O&M)

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claims. Thus, in such a situation, when these documents relied upon by the appellants had not seen the light of the day until they were produced by the defendants in their evidence nor the plaintiff was confronted with those documents nor any mention thereof was made in the pleadings by the appellants, certainly no error can be found in the impugned judgment and decrees and no interference is called by this Court while exercising its power under Section 100 of the CPC.

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In view thereof , I find no merit in this appeal.

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No substantial question of law arises in this appeal.

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Dismissed.

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January 19, 2010 (RAKESH KUMAR GARG) ps JUDGE

Khazana and Ors. v. Wazir Singh

Case brief

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Khazana and Ors. v. Wazir Singh

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