Dismissed

Gurbachan Kaur v. Ajit Singh and Anr.

Punjab & Haryana HC11 Mar 2014RSA/1805/2011

Case brief

AI extract

What is this about?

The High Court dismissed an appeal by an unsuccessful plaintiff challenging the dismissal of her suit for mandatory and permanent injunctions. The appellant failed to prove exclusive ownership of a disputed wall or her right to use a specific street. The court held that since the appeal depended on factual appreciation of evidence, the trial court's findings on credibility deserved weight under CP

What did the court decide?

The instant appeal was dismissed with no order as to costs.

Gurbachan Kaur Vs Ajit Singh and Anr. — Property and Title | Punjab & Haryana HC (2014)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA-1805-2011 (O&M) Date of Decision: 11.03.2014

Gurbachan Kaur

...... Appellant

Versus

Ajit Singh & Anr.

...... Respondents

CORAM: HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Sandeep Arora, Advocate for the appellant.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK, J.

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Present appeal, at the instance of an unsuccessful plaintiff, is directed against the concurrent findings recorded by both the learned Courts below, whereby her suit for mandatory and permanent injunction was dismissed.

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Brief facts of the case, as recorded by first Appellate Court in its impugned judgment, are that the plaintiff/appellant filed a suit for mandatory injunction directing the defendants to remove the lintel of their roof placed on a part of the wall AB owned and possessed by the plaintiff shown in red colour detailed in the head note of the plaint and for permanent injunction, restraining the defendants from putting any sort of obstruction in the user of the street BCDE, shown in red colour detailed in the head note of the plaint with the averments that plaintiff is owner in possession of the house property marked as ABCDEFGH bounded as East-Street,

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-1805-2011

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West-Balbir Singh, North-Gurbachan Singh, South-Nirmal Singh, Balwinder Singh and street, situated in the abadi of village Baddon. The site of the house was purchased by the plaintiff from one Sarwan Singh son of Bhag Singh vide registered sale deed dated 30.11.1981. The plaintiff claims that after purchasing the house, she raised construction. The walls towards the north and west are common with the adjoining owners, while the southern wall adjoining to the house of Nirmal Singh from A to H was raised by the plaintiff and Nirmal Singh jointly, while the wall from A to B was raised by the plaintiff exclusively as the defendant did not agree to construct the said wall jointly with the plaintiff. The plaintiff claims that after raising of the wall in the year 1981, the defendants raised a room adjoining the wall AB. For giving support to the roof of the said room, the defendant placed girder alongside the wall AB and laid the roof on the same. The defendant also approached the plaintiff for contributing share of the wall AB so as to make it joint in future. The plaintiff, however, did not consent to the same. The plaintiff further claimed that her relation with the defendants are strained after she refused to make the wall AB a joint wall. The defendants had no right, title or interest in the wall AB. The defendants are not entitled to place their roof on the wall AB without the consent of the plaintiff and without contributing to the cost of the wall. The street marked as BCDE and shown in red colour in the site plan, was brick paved by the Gram Panchayat. A drain of the plaintiff also passes through the street for draining the rainy water and daily use water and the same

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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falls at the point X. The plaintiff claims that she has earlier kept a door in the street BCDE from 1981. The plaintiff claims that the street in question is a public street and she is entitled to use the same without any interference from the defendants. The plaintiff claims that the defendants are head strong persons. They are threatening to interfere in the user of the street BCDE by the plaintiff. They are also threatening to refuse to allow access to her house through the said street. The defendants have also forcibly put the lintel on their roof on part of the wall AB, shown in red colour in the site plan, despite objections raised by the plaintiff. The plaintiff claims that the defendants have no interest in the wall, therefore, they have no right to use the same. The defendants have illegally removed the girder on which, their earlier roof raised and burdened the wall of the plaintiff with their lintel. The defendants are also threatening to not to allow the plaintiff to use the wall AB in future. The plaintiff claims that the defendants are bound to remove the lintel of their roof from the wall AB. The plaintiff has, therefore, prayed for the relief of mandatory injunction for directing the defendants to remove the lintel of their roof from the wall AB and for restraining them from raising any construction the said wall and from creating any obstruction in the user of the said wall exclusively by the plaintiff. The plaintiff has also prayed for the relief of permanent injunction restraining the defendants from putting any obstruction in the user of the street BCDE by the plaintiff.

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-1805-2011

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Upon notice, the defendants appeared and filed written statement, wherein, they took preliminary objections that the plaintiff has no locus standi and cause of action to file the present suit. The site plan filed by the plaintiff is incorrect. The suit of the plaintiff is not legally maintainable. On merits, the defendants denied that the plaintiff purchased the said house in the year 1981 from Sarwan Singh son of Bhagat Singh. The defendant denied that the alleged vendor was ever owner of the said house. The defendants denied that the northern and western walls of the house of the plaintiff are common. The defendants also denied that the southern wall of the house is joint with Nirmal Singh. The defendants also denied that the wall AB was raised exclusively by the plaintiff as alleged. The defendants claimed that the wall AB is their exclusive ownership. The plaintiff has no concern with the same. Therefore, no question arose for obtaining prior consent of the plaintiff before placing lintel on the roof of the wall AB. The defendants claimed that they are the exclusive owners in possession of the house, shown by the letters JKLM, in the site plan of the defendants and which is marked in red colour. The construction is more than 50 years old. The defendant No.1 claimed that the wall from J to JI is his exclusive ownership. It is more than 50 years old. The breadth of the wall is 13½ inch at places as shown in the site plan of the defendants. An almirah and a ventilator also exist in the said wall. The Almirah is 1 feet deep and is 3 feet 4 inch long. The ventilator is also in the wall. The defendants claimed that the existence of the almirah and the ventilator clearly

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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shows that the wall is their exclusive ownership. The defendants claim that the almirah and ventilator exist from the beginning. The air and light pass to the room of the defendants from the said ventilator for the last 50 years. The defendants claim that they have acquired a right of easement by way of prescription and necessity. The defendants claimed that previously the roof of the room marked X in the site plan, was of ballas and girders. Three years back, the defendants replaced the old roof with the lintel roof. At the time of replacement of the roof, the plaintiff never objected to the same. The defendants, therefore, claim that the plaintiff is estopped by her own acts, conduct and admission from filing the present suit. The defendants are also admitted that the street marked by the letters OPQR exists, as shown in the site plan of the defendants. The defendant No.1, however, claims that the said street is his exclusive ownership. The Gram Panchayat never brick paved the said street. The street is being exclusively used by the defendants. No one else, other than the defendants, is using the street for ingress and egress through the street. The rainy water and daily use water of the house of the plaintiff never falls in the street. No door of the house of the plaintiff opens into the street OPQR. The plaintiff is not entitled to use the street OPQR in any capacity. The defendants claim that in February 2002, the plaintiff herself put the dirty water of her house towards the street OPQR forcibly without the consent of the defendants. The matter was reported to the police and also to the Gram Panchayat, but the matter was later compromised and the

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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plaintiff discharged her waste water and rainy water through underground pipes in the street touching the wall of the plaintiff. The defendants, however, claim that no door of the house of the plaintiff opens into the street OPQR. On these averments, the defendants prayed for the dismissal of the suit.

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On completion of pleadings of parties, the learned trial

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Court framed the following issues :-

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Whether the plaintiff is owner of the house marked ABCDEFG shown green in colour in the site plan of the plaintiff ?OPP

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Whether the wall AB is exclusively owned by the plaintiff ?OPP

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Whether the property shown with letters BCDE is public street?OPP

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Whether the plaintiff is entitled to mandatory and permanent injunction as prayed for?OPP

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Whether the plaintiff has cause of action and locus standi to file the present suit?OPP

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Whether the suit is maintainable?OPP

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Whether the site plan is correct?OPP

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Relief.

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With a view to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, the learned trial Court came to the conclusion that the plaintiff has failed to prove her case. Accordingly, her suit for mandatory and permanent injunction was dismissed vide impugned judgment and decree dated 26.8.2009. Feeling aggrieved, the plaintiff filed first

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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appeal, which also did not find favour with the Addl. District Judge (Adhoc), Fast Track Court, Hoshiarpur and the same was dismissed vide impugned judgment and decree dated 31.01.2011. Hence this appeal.

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Learned counsel for the appellant submits that the plaintiff-appellant produced cogent and convincing evidence on the record of the case, which was sufficient to decree her suit. However, since the learned courts below failed to appreciate the true facts and circumstances of the case as well as the evidence available on record, the impugned judgments and decrees were not sustainable in law. The defendants-respondents were taking undue advantage and were trying to encroach upon the property of the plaintiff. He prays for setting aside the impugned judgments and decrees, by allowing the present appeal.

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Having heard learned counsel for the appellant at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure (CPC for short). No question of law much less substantial question of law has been found involved in the present case. To say so, reasons are more than one, which are being recorded hereinafter.

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Pleadings of the plaintiff-appellant and the evidence

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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produced in the Court were not going hand-in-hand. Plaintiff miserably failed to prove her pleaded case. On the other hand, defendants took specific averments and produced sufficient as well as cogent evidence to prove the same. Report of Local Commissioner Ex. D-3 was also duly proved as per the stand taken in the written statement. All the witnesses produced by the defendants-respondents were put to cross-examination and they successfully stood the acid test thereof. Having said that, this Court feels no hesitation to conclude that the learned courts below committed no error of law, while passing their respective impugned judgments and the same deserve to be upheld.

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Present case was based on findings of facts. It is the settled proposition of law that whenever fate of a suit is dependent primarily on oral evidence, the appellate courts must bear in mind that the trial court would be in an advantageous position to see and appreciate the demeanor of witnesses appearing before it. In such a situation, findings of facts recorded by learned trial Court deserve to be given due weight. That is what has been rightly done by the learned Addl. District Judge in the present case.

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10 The abovesaid view taken by this Court also finds support from the judgment of the Hon'ble Supreme Court in Jagdish Singh vs. Madhuri Devi, 2008(10) SCC 497 . The relevant observations made by Hon'ble the Supreme Court in para 25 to 33 of the judgment, which can be gainfully followed in the present case, read as under :-

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-1805-2011

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“At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanour of witnesses and, hence, the trial court’s conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to wellestablished principles of law or unreasonable.

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Before more than a century, in Coghlan v. Cumberland, (1898) 1 Ch 704, Lindley, M.R. pronounced the principle thus :

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"Even where the appeal turns on a question of fact, the Court of appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen." [see also observations of Lord Thankerton in Watt v. Thomas, (1947) 1 All England Reporter 582] .

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In Sara Veeraswami v. Talluri Narayya, AIR 1949 PC 32 : 75 IA 252 , the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated; "But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."

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This Court also, before more than half a century in Sarju

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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Pershad v. Jwaleshwari, 1950 SCR 781 , stated;

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"The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact.

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Referring to several cases on the point, the Court concluded;

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"The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding."

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(emphasis supplied)

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After about a decade, in Radha Prasad v. Gajadhar Singh, (1960) 1 SCR 663 , this Court reiterated:

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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"The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge’s conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a Trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the Trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the Trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the Trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the Trial Judge and is free to reverse the findings if it thinks that the inference made by the Trial Judge is not justified".

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In T.D. Gopalan v. Commissioner of Hindu Religious

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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& Charitable Endowments, Madras, (1973) 1 SCR 584 , this Court said?

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"The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross-examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants".

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Yet in another decision in Madhusudan Das v. Narayanibai, (1983) 1 SCR 851 , this Court said:

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"At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. . .The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.

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(emphasis supplied)

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Three requisites should normally be present before an appellate court reverses a finding of the trial court;

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(i) it applies its mind to reasons given by the trial court;

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(ii) it has no advantage of seeing and hearing the witnesses; and

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(iii) it records cogent and convincing reasons for disagreeing with the trial court.”

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Before arriving at a judicious conclusion, the learned Addl. District Judge, Hoshiarpur re-appreciated the facts and recorded his own cogent findings, contained in paras 16 & 17 of the impugned judgment and the same read as under :-

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“The defendants have further examined DW-2 Lokesh Walia, Draftsman who has furnished his affidavit

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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RSA-1805-2011

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Ex. D4 in his cross examination in chief in which he has deposed that he is working as draftsman in civil court Garhshankar since 12/13 years. He has seen the site plan D2 from the court file which was prepared by him at the spot on the instructions of Ajit Singh defendant and he identified his signatures on the same. The perusal of record reveals that this witness was also cross-examined at length by the learned counsel for the plaintiff, but nothing could be extracted from his lengthy cross examination. Even while facing cross examination, this witness has deposed that towards the east of point K shown in Ex. D2, there is no property of Ajit Singh defendant. He had seen the underground pipe line existing from point P towards western side by seeing the both ends of the said pipe. The said pipe line was not connecting to the house of the defendant. It only connects the house of the plaintiff. The almirah shown in room X of the defendant was seen by him by opening it. It is not possible to connect the said almirah by removing the bricks from the wall subsequent to the construction of the wall.

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The perusal of the testimony of the plaintiff and her witness Sodhi Ram reveals that the plaintiff has categorically admitted that the house of the defendant Ajit Singh was in existence prior to the house purchased by her. It has also been admitted by her that construction of the house of the defendant is old one and that is of 15-16 years. It has also been admitted by the plaintiff herself that there is an almirah in the wall in dispute towards the side of the house of defendant Ajit Singh and this fact also find corroboration from the testimony of PW-2 Sodhi Ram, who has also deposed with regard to the existence of the wall and further the old construction of the house of the defendant and further regarding the existence of

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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almirah in the wall in dispute. Though, during the course of arguments, learned counsel for the appellant has strongly contended that the wall was raised by the plaintiff herself which is exclusive ownership of the plaintiff and the defendant has no right to put lintel on the wall but the perusal of the evidence on record reveals that the plaintiff has failed to prove this fact that the wall in question was raised by the plaintiff exclusively and the plaintiff is owner of the wall exclusively.”

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During the course of hearing, learned counsel for the appellant failed to point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments passed by learned courts below. He also failed to put into service any substantive argument so as to convince this Court to take a different view than the one taken in the impugned judgments. Further, no question of law, much less substantial question of law has been found involved in the present case, which is sine qua non for interference by this Court, while exercising its jurisdiction under Section 100 of CPC. Thus, the impugned judgments and decrees deserve to be upheld, for this reason also.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

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Resultantly, the instant appeal stands dismissed,

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however, with no order as to costs.

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11.03.2014 ‘Satyawan’

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( RAMESHWAR SINGH MALIK ) JUDGE

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Satyawan 2014.06.12 13:20 "I attested to the accuracy and integrity of this document" High Court Chandigarh

Gurbachan Kaur v. Ajit Singh and Anr.

Case brief

What is this about?

What did the court decide?

Gurbachan Kaur v. Ajit Singh and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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