Ajay Tewari, J.@mdashThis appeal has been filed by the defendant-appellant against the judgment passed by the learned Appellate Court dated 26.10.1988 reversing the judgment of the learned trial Court.
2. Brief facts of the case are that the plaintiff-respondent had filed a suit for injunction against the appellant claiming ownership and possession over open piece of land in the abadi deh of Pataudi, Tehsil Pataudi, District Gurgaon. Admittedly, he could not prove the ownership. The trial Court found inconsistencies in the evidence led by the plaintiff-respondent and dismissed the suit. On appeal the learned lower Appellate Court believed the evidence led by the plaintiff-respondent and held that there were contradictions in the testimony of the defendant-appellant and consequently allowed the appeal and decreed the suit. The following questions of law have been proposed by the appellant:-
i) Whether the plaintiff-respondent placed any evidence on the record to prove his possession and ownership in the plot in dispute.
ii) Whether the plaintiff-respondent''s suit for permanent injunction is maintainable if the possession is not proved on record and even on the spot.
iii) Whether the defendant-appellant is the owner in possession of the property in dispute for the last 60 years and even today also.
iv) Whether the lower appellate court was justified to reverse the well considered findings of the trial court with the fact that there is no evidence on record to prove his possession & ownership of the plot.
3. I find that all the questions proposed are pure questions of fact. Even while arguing learned counsel for the appellant has asserted that once the respondent had failed to prove his ownership the injunction could not have been granted. I am afraid there is no warrant for this proposition of law. No judgment has been cited in support thereof. He has further argued that even from the site plan placed on record by the respondent it is clear that the open space which is claimed to be used for tethering of cattle it is not contiguous to the land of the respondent and in these circumstances it is highly unlikely that he would be tethering his cattle over there.
4. The following question of law is proposed by this Court:-
Whether even if the case of the respondent on fact is accepted its user would still amount to exclusive possession?
5. Learned counsel for the appellant has further argued that mere action of tethering of cattle or storing of cow dung on an open vacant plot cannot be construed as exclusive possession. In this connection he has relied upon
6. In my opinion, the judgment in the case of Bhag Singh (supra) is applicable to the facts of the present case. The said question of law has to be answered in favour of the appellant.
7. In the circumstances, the appeal is allowed. The judgment of the Lower Appellate Court is set aside and that of the trial Court is upheld.
8. Since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of.
