Dismissed

Shanti Devi v. O.P. Chaudhary & Ors.

Punjab & Haryana HC1 Dec 2014RSA/3825/2014

Case brief

AI extract

What is this about?

This second appeal against a dismissal of a suit for permanent injunction was dismissed. The High Court held that the appellant failed to discharge the burden of proving her case of possession of the suit property, adding that subsections were insufficient. The appeal was consequently dismissed.

What did the court decide?

The appeal filed by the appellant plaintiff was dismissed, and the impugned judgment and decree of the lower appellate court stood affirmed.

Shanti Devi Vs O.P. Chaudhary & Ors. — Property and Title | Punjab & Haryana HC (2014)

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RSA No.3825 of 2014 (O&M)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No.3825 of 2014 (O&M) Date of decision: 01.12.2014

Shanti Devi

... Appellant

Vs.

O.P.Chaudhary and others

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... Respondents

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CORAM: HON'BLE MR. JUSTICE AMIT RAWAL

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Present:Mr. Satinder Kumar Rana, Advocate for the appellant.

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AMIT RAWAL J (Oral).

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Plaintiff-appellant is in regular second appeal against the judgment and decree dated 07.03.2013 passed by the Additional Civil Judge (Senior Division), Karnal, whereby suit of the plaintiff was dismissed and against judgment and decree dated 04.03.2014 of the District Judge, Karnal, whereby the appeal filed against the judgment and decree also met with the same fate.

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Brief facts of the case are that the plaintiff had filed the suit for seeking a decree for permanent injunction inter alia on the ground that she is owner in possession of the house in question as detailed and described in para No.2 of the plaint. Her residential house consists of two rooms, one khor, latrine, bathroom and there is a popular one kikkar tree and one pilkhan tree standing and the plaintiff has also installed khuntas, pegs for tethering cattle. Earlier the property in question was being used by the husband of the

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SAVITA DEVI KADIAN 2014.12.03 12:56 I attest to the accuracy and authenticity of this document High Court Chandigarh

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RSA No.3825 of 2014 (O&M)

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plaintiff as Bara, but after the death of husband of plaintiff, same is being used by the plaintiff as her residential house for the last 50-55 years. The defendants have no right, title or interest in the suit land, but defendants in collusion with anti-social elements are adamant to interfere in the peaceful possession of the plaintiff forcibly and illegally despite repeated requests of the plaintiff. Hence the present suit.

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Upon notice, defendants filed their written statement raising various preliminary objections stating that the suit is not maintainable and is an abuse of the process of law. On merits, it was pleaded that the property in question is in possession of Dr. B.R.Ambedkar Yuva Sabha, village Kalron, District Karnal and Gram Panchayat had passed a resolution, whereby grant for the construction of Ambedkar Bhawan cum Library was released in favour of the Sabha. Remaining averments of the plaint were denied and dismissal of the suit was prayed for.

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After considering the arguments of the counsel for the parties and evidence on record, trial Court dismissed the suit of the plaintiff on the ground that she has failed to prove her case.

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Aggrieved from the judgment and decree of the trial Court, plaintiff-appellant filed an appeal before the First Appellate Court, which was also dismissed vide impugned judgment and decree dated 04.03.2013 by observing that plaintiff failed to prove her ownership and possession of the property in dispute, so declined

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SAVITA DEVI KADIAN 2014.12.03 12:56 I attest to the accuracy and authenticity of this document High Court Chandigarh

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RSA No.3825 of 2014 (O&M)

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to grant any injunction as prayed. Lower Appellate Court further observed that plaintiff cannot take the benefit of weakness in defence and also affirmed the findings of the trial Court on all the issues.

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Still not satisfied, plaintiff-appellant filed the instant appeal and submitted that substantial questions of law arise for determination of this Court.

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In support of his case, learned counsel for the appellant submits that both the Courts below wrongly held that the house occupied by the appellant is separate to the one mentioned in the suit. She has duly proved that she was in possession of the house in dispute for the last more than 55 years. He further submits that in order to prove her possession, plaintiff-appellant brought on record by way of evidence/one latrine grant given by the Court. He also submits that even plaintiff-appellant also brought on record the document to show that property had been given a water connection. However, the said document did not show the identification of property. The argument put forth by the plaintiff-appellant that both the Courts below have committed perversity, is therefore, rejected as findings of Courts below are based on appreciation of both oral and documentary evidence.

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Both the Courts below have found that plaintiff-appellant had not been able to prove the possession of the suit property situated within the abadi deh of the village except by bringing on record the site plan. Appellant has not been able to show her

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SAVITA DEVI KADIAN 2014.12.03 12:56 I attest to the accuracy and authenticity of this document High Court Chandigarh

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RSA No.3825 of 2014 (O&M)

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possession in the suit property. Though the Courts below have found that defendant has not been able to produce site plan in support of his case, yet it is the plaintiff who is to lead direct and cogent evidence, discharge the burden and only then onus shifts. But in the instant case, burden was never discharged.

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I am in agreement with the findings of the Courts below, prima facie, appellant-plaintiff has not placed on record any document/evidence other than the site plan to prove her possession in the suit property and therefore, did not have any cause of action to seek injunction against the defendant/respondents by filing suit.

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No other argument has been raised.

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Accordingly, the appeal is dismissed.

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(AMIT RAWAL) JUDGE

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December 01, 2014 savita

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SAVITA DEVI KADIAN 2014.12.03 12:56 I attest to the accuracy and authenticity of this document High Court Chandigarh

Shanti Devi v. O.P. Chaudhary & Ors.

Case brief

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Shanti Devi v. O.P. Chaudhary & Ors.

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