Happy Kumar vs Shiam Sunder and Others

S.K. Jain, J.—Civil Suit 136 of 1982 instituted on 23.2.1981 for possession of a plot fully described in the head note of the plaint and situated in Mahal Bhagat, Tehsil and Distt., Ludhiana filed by plaintiff Shiam Sunder was decreed by Shri R.C. Ahluwalia, Sub Judge 1st Class, Ludhiana, vide his judgment and decree dated 4.11.1982 against Happy Kumar and four others. Feeling aggrieved, one of the defendants namely, Happy Kumar preferred Civil Appeal No. 100/26 of 1983, which was dismissed by Shri T.N. Gupta, learned District Judge, Ludhiana, vide his judgment and decree dated 3.5.1983.

It is that judgment and decree of the First Appellate Court, which has been appealed against by Happy Kumar defendant in this Regular Second Appeal and which requires my examination of its sustainability.

I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and judgment of both the Courts below.

Plot No. 96 alongwith other plots was carved cut of Khasra No. 154 which was owned by defendants No. 2 and 5. They sold plot No. 96 to the plaintiff vide sale deed dated 30.10.1975 Ex.P-1 registered on 5.11.1975 whereas plot No. 99 was sold to Happy Kumar first defendant on 21.2.1975. PLaintiff was residing at Shimla. On the back of the plaintiff, the defendant No. 1 encroached upon plot No. 96 and constructed a house, which necessitated the filing of the suit. The defendant No. 1 took the plea that he had constructed the house on the plot which he had purchased vide sale deed dated 21.2.1975 after demarcation of the plot No. 99 was given to him by defendants No. 2 to 5. He denied to have encroached upon any portion of plot No. 96.

Parties fought the litigation the following issues :-

Whether the plaintiff is entitled to the possession of the property in dispute? OPP

Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPDI

Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPDI

Whether the suit is misconceived as alleged, if so its effect? OPDI

Whether the defendant are entitled to special costs u/s 35A of the C.P.C.? 2 to 4.

Relief.

Following facts are admitted :-

(i). Vide sale deed Ex.D-1 dated 21.2.1975 registered on the same day, plot No. 99, site plan whereof is attached to the said sale deed, was sold to defendant No. 1; and

(ii). vide sale deed Ex. P21 dated 30.10.1975, registered on 5.11.1975, plot No. 96, of which Ex P 2 is the site plan, was sold to the plaintiff.

The case of the defendant No. 1 is that he had raised construction in February, 1975. But there is not even an iota of evidence on record in the shape of receipts for purchase of building material and payment of labour charges to the mason, labours, carpenter or other skilled or non-skilled labour for raising the said construction. Nor any receipt of payment of carriage charges of the material to the spot has been produced. Therefore, findings of the two courts below to the effect that respondent No. 1 has not been able to establish that he had raised construction during February, 1975, cannot be faulted.

The title of the plaintiff on plot No. 96 is not even denied on behalf of the contesting defendant. It is argued on his behalf that the plaintiff had been seeing the construction being raised on the spot and consequently, with full knowledge of this fact be had purchased the plot in dispute. First defendant was put in possession of plot No. 96 by defendant Nos. 2 to 5 by giving physical demarcation and since the plaintiff is claiming possession through defendant Nos. 2 to 5, he was bound by his acts and conducts and, therefore, estopped from claiming possession of the plot in dispute.

On the other hand, learned counsel for the plaintiff has submitted that the plaintiff was residing at Shimla and he came to Ludhiana during July, 1980 when he had found the above said encroachment. In order to appreciate the rival arguments, I have gone through the evidence on record. In order to substantiate the plea of estoppel, the defendant has examined DW-2 Kewal Krishan, a neighbour. According to him in his presence, demarcation of plot No. 99 was given to Om Parkash, father of defendant No. 1. So even according to this witness of the defendant possession of plot No. 96 was not delivered to the father of the defendant. The case of the defendant has further been destroyed by his father Om Parkash who has appeared as DW-3. He has stated that defendant Nos. 2 to 5 had told him that he could have both the plots No. 96 and 99. The best persons who could depose on the point of estoppel were defendants 2 to 5, the vendors. But strangely enough no efforts have been made to summon and examine either of them. Therefore, an irresistible presumption u/s 114 (illustration (g) of Indian Evidence Act, can conveniently be raised against defendant No. 1 to the effect that these persons would not have supported him had any one of them been examined.

In view of the above discussion, I do not find any fault with the concurrent findings of fact recorded by two Courts, which are hereby affirmed.

Resultantly, this appeal fails and is hereby dismissed. No costs.