L.N. Mittal, J.@mdashPlaintiffs No. 1, 3 and 4 have filed the instant second appeal after the Plaintiffs (i.e. Appellants and proforma Respondent No. 4) lost in both the courts below.
2. The Plaintiffs alleged that they are owners of 31 kanals 01 marla land, but the Defendants have encroached upon portion of killa Nos. 19 and 20 out of the said land of the Plaintiffs because the land of Defendants adjoins towards North of the Plaintiffs'' land. Encroached portion has been depicted in the site plan Ex.PW-2/1 in red colour. The Plaintiffs accordingly sought possession of the said encroached portion.
3. The Defendants denied the plaint allegations and raised various preliminary objections. The Defendants also pleaded that they have raised construction on their own land, which has been purchased by them.
4. Learned Civil Judge (Senior Division), Rewari, vide judgment and decree dated 19.07.2004, dismissed the Plaintiffs'' suit. First appeal preferred by the Plaintiffs stands dismissed by learned District Judge, Rewari, vide judgment and decree dated 14.11.2006. Feeling aggrieved, Plaintiffs No. 1, 3 and 4 have preferred the instant second appeal.
5. I have heard learned Counsel for the parties and perused the records.
6. Learned Counsel for the Appellants vehemently contended that according to the revenue record produced in evidence, Plaintiffs are owners of the suit land and according to the demarcation report of the Local Commissioner appointed by the trial court, Defendants have encroached upon 09 marlas land of killa No. 20 of the Plaintiffs and the encroached portion has been depicted in red colour in site plan prepared by the Local Commissioner in his report and therefore, the Plaintiffs are entitled to possession of the said portion encroached by the Defendants.
7. Learned Counsel for Defendants/Respondents No. 1 to 3 contended that Rati Ram - father of Defendants had purchased the disputed portion of killa No. 20 from Kishore Singh - predecessor of Plaintiffs vide writing Ex.DW-1/B and therefore, Defendants are owners of the said portion. Learned Counsel for the Appellants, however, countered this contention by submitting that document Ex.DW-1/B is unregistered and therefore, no valid title could pass to the Defendants through this document as the alleged sale was for consideration of Rs. 2,500/-.
8. I have carefully considered the rival contentions. Report of the Local Commissioner, who demarcated the land of the Plaintiffs, reveals that the Defendants have encroached upon 09 marlas portion of killa No. 20 of the Plaintiffs, as depicted in site plan prepared by Local Commissioner in his report, by raising construction thereon. No objection was preferred against the said report of the Local Commissioner. Consequently, it is established that there is encroachment by Defendants over 09 marlas land of killa No. 20. Revenue record reveals that Plaintiffs are owners/co-sharers in the said land and Defendants have no right, title or interest therein. In fact, Defendants'' own evidence also reveals that their house exists in killa No. 20. However, Defendants'' stand is that they have purchased this portion vide writing dated 11.02.1991 Ex.DW-1/B. However, this writing does not confer any title on the Defendants over the suit land. Vide this writing, Defendants'' father Rati Ram allegedly purchased some land of killa No. 20 from Kishore Singh (predecessor of the Plaintiffs) for Rs. 2,500/-. However, since the sale consideration was more than Rs. 100/-, any such sale could be effected only through registered sale deed. Admittedly, there is no registered sale deed in favour of Defendants or their father. The aforesaid writing is unregistered and is not on sufficiently stamped paper. Consequently, by this writing, no title in the suit portion could pass in favour of Defendants or their father.
9. In addition to the aforesaid, vide writing Ex.DW-1/B, Rati Ram purports to have purchased the land from Kishore Singh. However, the said writing has not been signed or thumb-marked by Kishore Singh, although it purports to have been thumb-marked by Plaintiff No. 1. However, Plaintiff No. 1 was not the vendor. The writing has not been signed by vendor Kishore Singh. Moreover, according to this writing, the sale consideration was to be paid later on. There appears an endorsement below this writing that sale consideration of Rs. 2,500/- was paid on 01.07.1991, but the said endorsement has also not been signed by vendor Kishore Singh.
10. There is no pleading in the written statement that Defendants or their father had purchased the land in question from Kishore Singh or from Plaintiff No. 1 nor there is pleading that any writing was executed regarding the said sale. Thus, writing dated 11.02.1991 Ex. DW-1/B is also completely beyond pleadings.
11. Learned Counsel for Respondents No. 1 to 3 contended that Plaintiff No. 1, while appearing in the witness box, has admitted that they did not raise any objection when construction was raised by Defendants over the suit portion. The contention is factually incorrect. Ratna Devi - Plaintiff No. 1 has not made any such statement. On the other hand, as pointed out by Counsel for the Defendants, she simply stated that they did not make any application anywhere to stop the construction of the Defendants. However, Ratna Devi did not state that they did not object to the construction being raised by the Defendants. Faced with this situation, learned Counsel for Respondents No. 1 to 3 referred to statement of Mahender Singh - Plaintiff No. 2 as PW-1. He has stated that he did not raise any objection when the Defendants constructed their house. However, it would not mean that the other Plaintiffs also did not make any objection. In any event, the Plaintiffs are owners of the suit land. Defendants have no right, title or interest therein. Construction raised by the Defendants over the suit portion depicted by Local Commissioner is pure and simple encroachment by them on the land of the Plaintiffs. Plaintiffs have filed the instant suit for possession of said encroached portion on the basis of title. Consequently, Plaintiffs are entitled to succeed.
12. Following substantial question of law arises for determination in the instant second appeal:
Whether the finding of the courts below non-suiting the Plaintiffs on the basis of unregistered writing Ex.DW-1/B is perverse, illegal and unsustainable?
13. For the reasons already recorded, the aforesaid substantial question of law has to be answered in favour of the Plaintiffs. Finding of the courts below against the Plaintiffs is completely perverse and illegal being based on misreading and misappreciation of evidence and law. The Plaintiffs are owners of the suit portion and are, therefore, entitled to possession thereof.
14. It may be mentioned that possibility of amicable settlement between the parties was also explored so that Defendants/Respondents No. 1 to 3 may not have to demolish the construction raised by them on the suit portion belonging to the Plaintiffs. On 23.04.2010, learned Counsel for Respondents No. 1 to 3, after seeking instructions from Respondent No. 1, who was present in person in the Court, stated that Respondents No. 1 to 3 were ready to pay market price of the alleged encroached land measuring 09 marlas to the Plaintiffs. Accordingly, the case was adjourned to 13.05.2010 to enable Counsel for the Appellants to seek necessary instructions from the Appellants. On 13.05.2010, the parties came to understanding and arrived at amicable settlement, according to which, Respondents No. 1 to 3 agreed to pay Rs. 1,40,000/- as price of 8 to 9 marlas land of the Plaintiffs, allegedly encroached upon by Respondents No. 1 to 3 and thereupon, Respondents No. 1 to 3 would become owners in possession of the suit land and the instant appeal was to stand dismissed. The case was adjourned to 25.05.2010 and then to 20.07.2010 and 29.07.2010. However, on 29.07.2010, Counsel for Respondents No. 1 to 3 stated that Respondents No. 1 to 3 were not ready to pay the amount of Rs. 1,40,000/- to the Plaintiffs as per amicable settlement arrived at on 13.05.2010. The appeal was, therefore, adjourned to be decided on merits. However, again on 30.08.2010 and 21.09.2010, counsel for Respondents No. 1 to 3 sought and was granted adjournment to enable Respondents No. 1 to 3 to effect amicable settlement with the Plaintiffs. However, in spite thereof, no amicable settlement has been arrived at between the parties and learned Counsel for Respondents No. 1 to 3 today stated that Respondents No. 1 to 3 are not ready to pay any amount to the Plaintiffs as price of the land of Plaintiffs allegedly encroached upon by Respondents No. 1 to 3. In view thereof, this Court is left with no option, but to pass decree for possession of encroached land by demolition of construction raised thereon by Defendants i.e. Respondents No. 1 to 3.
15. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of the courts below are set aside and suit filed by the Plaintiffs is decreed for possession of the suit portion measuring 09 marlas out of killa No. 46//20, as depicted in red colour in the site plan prepared in report of Local Commissioner Ramesh Chand Kanungo, by demolishing the construction raised thereon by the Defendants.
