L.N. Mittal, J.@mdashPlaintiff-Joginder Kaur having non-suited by both the Courts has filed this second appeal. Plaintiff-appellant filed suit against defendant/respondent - Gurmej Singh alleging that plaintiff is owner in possession of the suit plot situated across the road from her house. The suit plot is ancestral property of the plaintiff. She raised foundations of the suit plot upto height of 2 feet. She has been storing her manure and garbage there. Defendant having no right, title or interest therein threatened to dispossess the plaintiff from the suit plot. Plaintiff sought permanent injunction restraining the defendant from doing so.
2. The defendant denied the plaint averments and pleaded that defendant is owner in possession of the suit property and has raised foundations upto plinth level and he is using it for storing manure etc. It is comprised of khasra No. 2590/1 to 1554 (2-12). Plaintiff herein threatened to take forcible possession of the suit property whereupon defendant herein had filed suit against the plaintiff herein and her son. The present suit is, therefore, liable to be stayed u/s 10 of the Code of Civil Procedure.
3. Learned Civil Judge (Junior Division), Nawanshahr vide judgment and decree dated 04.01.2008 dismissed the plaintiffs suit. First appeal preferred by plaintiff has also been dismissed by learned Additional District Judge, Nawanshahr vide judgment and decree dated 26.08.2009. Feeling aggrieved, plaintiff has filed this second appeal.
4. I have heard learned counsel for the parties and perused the case file.
5. Counsel for the appellant vehemently contended that plaintiff-appellant and her witnesses have categorically stated that plaintiff is owner in possession of the suit property and has filled the foundations thereof and, therefore, plaintiffs case is proved. It was also argued that the defendant has failed to prove that the suit plot is part of khasra numbers alleged by him. Reference was also made to cross-examination of the defendant, wherein he has stated that he had purchased the suit land from Custodian. It was pointed out that defendant has neither produced revenue record of khasra numbers pleaded by him nor produced the alleged sale certificate or title deed from Custodian.
6. On the other hand, counsel for the defendant-respondent referred to statement of plaintiffs witness Gurdial Singh, Chowkidar who deposed that the plaintiff had been storing her manure/garbage in pond towards south of her house for the last 20 years. However, he again stated that the plaintiff had been throwing manure there for the last six months. It was also pointed out that the plaintiff-appellant has failed to prove her ownership or possession over the suit property.
7. I have carefully considered the rival contentions. Mere oral statements of plaintiff and her two witnesses are not sufficient to prove her ownership or possession over the suit plot. It is not difficult for a party to procure a couple of witnesses who may depose in favour of the party examining them. On the contrary, the location of the suit property depicts that plaintiff has no concern with it. Plaintiffs house is on one side of the road whereas the suit plot is on other side of the road. No document has been produced by the plaintiff to prove her ownership or possession over the suit plot. On the contrary, the suit plot is surrounded by the land of defendant and his brothers and by this location itself, it can be safely said that the defendant is in possession of the suit land. Plaintiff cannot succeed on the weaknesses of the case of the defendant. Assuming that the defendant is neither owner nor in possession of the suit plot, even then without proving her ownership or possession over the suit plot, the plaintiff-appellant cannot succeed. The contention that there was no necessity for the defendant to fill foundations of the suit plot when there is other land of defendant on all three sides thereof, does not help the plaintiffs case. Defendant is the best judge as to how to utilize his property. In any case, ownership or possession of defendant over the suit plot is not to be adjudicated in the instant lis. Only ownership or possession of the plaintiff has to be determined. The plaintiff has miserably failed to establish the same.
8. Finding in this regard recorded by the lower Appellate Court does not suffer from any perversity or illegality nor the same is based on misreading or mis-appreciation of evidence. On the basis of alleged weakness in the case of the defendant, no decree can be granted to the plaintiff, unless she proves her case, which she has not. For the reasons aforesaid, I find no merit in this second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed.
