Hon'ble Harsh Kumar, J.
(Delivered by Hon'ble Harsh Kumar, J.) This first appeal under Section 96 of C.P.C. has been filed by the plaintiff-appellant against the judgment and decree dated 26-05-2010 passed by the Additional Civil Judge (Senior Division), Court No. 3, Ghaziabad in Civil Suit No. 2175 of 2008 (Chandrasen vs. Surendra Verma & others).
We have heard Sri Umakant, learned counsel for the appellant and Sri Anoop Trivedi for the defendant-respondents.
The brief facts relating to the case are that a civil suit was filed by the plaintiff-appellant for a decree of permanent injunction with the allegations that the suit property was his ancestral property and he is owner in possession over the same which consists two rooms wherein he was residing with family and carrying on dairy business; that there is a tin shed wherein he is keeping his cattle; that the property exclusively belongs to him and none else has any concern with the same; that the property in dispute was recorded in the name of his father in the records of Nagar Nigam and after his death he has become exclusive owner in possession; that the defendant-respondents are trying to forcibly dispossess him from the property in dispute; that the entry of the name of plaintiff's father in the assessment register of the Nagar Nigam was illegally got expunged by the defendant-respondents on 24-06-2009 without any notice or opportunity of hearing to the plaintiff and application filed by him to recall the ex-parte order is pending. It was also pleaded that against the order dated 24-06-2009, he has filed writ petition no. 33699 of 2009 before this Court which is pending.
The suit was contested by the defendant-respondents by filing written statement denying the plaint allegations. It was pleaded in written statement that the property in dispute belongs to defendant no. 1 and the plaintiff has never been owner in possession over same; that the allegations of the plaintiff that it is his ancestral property and he is in possession over the same are incorrect; that the plaintiff has not mentioned source of his title; that the defendant no.1 is owner in possession of the property in suit and name of father of plaintiff has rightly been deleted by Nagar Nigam from the assessment register; that the plaintiff had been looking after cattle of defendant no.1 under his employment.
The plaintiff-appellant has produced the following documentary evidence amongst other in support of his case:
1) Paper no. 9C copy of Extract of Khasra wherein plot no. 744 is entered as 'Abadi'.
2) Paper no. 10C/3 Copy of Annual Assessment Register for house tax and water tax of the years 1978 to 1983 wherein in the column of owner's name, owners and landlords of Layalpur Engineering Om Prakash, Hari Shankar, Lal Govind, Rich Pal and Kundan Singh are recorded.
3) Paper no. 11C/2 Copy of Demand and Collection Register of Nagar Nigam, Ghaziabad for house tax and water tax for the year 1994-97 wherein in column no. 3 names of Shyam Singh and Kundan Singh, owner of Layalpur Company are recorded as tax payer.
4) Paper no. 18C Copy of receipt dated 18-07-2008 for electricity charges.
5) Paper no. 19C Domicile certificate of Kundan Singh dated 12-11-2008.
9) Paper No.162/C - copy of memorandum of appeal of Misc. Appeal No.17/2010 filed by plaintiff before J.S.C.C., Ghaziabad against order dated 16.10.2009 passed after hearing by Nagar Nigam in furtherance of order in Writ Petition No.33699 of 2009.
Apart from above, the plaintiff-appellant in order to establish his title and the possession over the property in dispute has produced himself as P.W.1, his real brother Purshottam as P.W.2, Ram Swaroop as P.W. 3, Ishwar Singh as P.W.4, Jag Mohan Kasana as P.W. 5, Vishnu Bhagwan as P.W. 6 and Court Amin Arun Kumar as P.W. 7.
The defendant-respondents have filed the following documentary evidence amongst others:
1) Paper no.50 C Bill dated 27-10-1977 of house tax-water tax in the name of Layalpur Engineering Company in Nagar Nigam.
2) Paper no. 51 C Bill dated 17-07-1979 of house tax - water tax in the name of Layalpur Engineering Company in Nagar Nigam.
3) Paper no. 52 C Bill dated 28-11-1982 of house tax - water tax in the name of Layalpur Engineering Company.
4) Paper No.53 C - copy of notice dated 26.2.1983 demanding house tax and water tax from Layalpur Engineering Company.
5) Paper no. 54 C Bills of House tax and water tax from 01-10-1988 to 31-03-1989 issued by the City Board, Ghaziabad in the name of Layalpur Engineering Company.
6) Papers no. 59/C6 & 59/C8 cases of annual assessment register of Nagar Nigam, Ghaziabad from 1978 to 1983 and 1994-95 with entry of order expunging the name of Kundan Singh from column no. 5 and tax payer.
7) Paper No.77/C - copy of receipt of payment of house tax and water tax from 1.4.2008 to 31.3.2009 by Shyam Singh.
8) Paper no. 78/C Memorandum of Article of Leco Iron & Steal Company Pvt. Ltd., showing that the Company was registered on 31-03-1973 at Kanpur and the shareholders are Shyam Singh, Smt. Shanti Devi, Surendra Verma and Narendra Kumar.
9) Paper No.144/C - copy of order dated 16.10.2009 passed by Nagar Nigam, Ghaziabad, upon hearing the plaintiff and expunging the name of father of plaintiff.
In oral evidence, defendant no. 1 Surendra has produced himself as D.W. 1, Subhash Tyagi as D.W. 2, Jagbir Singh as D.W. 3, Sardar Darshan Singh as D.W. 4 and Bijendra Kumar as D.W. 5.
Trial court framed following issues for disposal of case.
i) Whether the plaintiff is owner, in possession over the property in dispute ? ii) Whether the suit is undervalued ? iii) Whether the court fee paid is insufficient ? iv) Whether the suit of the plaintiff is barred by the provisions of Sections 34 & 41 of the Specific Relief Act ? v) Whether the plaintiff has a cause of action ? vi) To what relief if any is the plaintiff entitled ?
While deciding the issue no. (i), the court below has analyzed the entire documentary as well as oral evidence brought on record by the parties and has recorded a finding that the plaintiff has failed to produce any document to establish his ownership and title over the property in dispute. It has further held that paper no. 18C, 19C, 20C and 21C, which have been referred to hereinabove relates to the year 2008 and he has failed to produce any document to even remotely establish his right or title or possession over the property prior to said period. Upon consideration of evidence on record it has come to the conclusion that though the plaintiff has claimed the property to be his ancestral and in possession over the same since times of his ancestors but has failed to establish the same either by producing any documentary or even oral evidence and Paper no. 10C/3 to 11C/3 filed by plaintiff-appellant, which are copy of register maintained by Nagar Nigam for payment annual house tax and water tax for the year 1978 to 1983, have rightly been not taken into account by the trial court to establish the title of the plaintiff inasmuch as the same is not a record pertaining to title and is maintained only for the purpose of collecting tax.
Before proceeding further reference to certain features of plaintiff/appellant's evidence appears necessary to be discussed in brief.
(i) The plaintiff as P.W.-1 has stated in his cross examination at page 1 that he is five brothers namely Begahraj, Purshottam, Totaram, Gulab Singh and the youngest Chandra Sen, out of whom only he and Purshottam are alive, at page 3 that he has not deposited any house tax in Nagar Nigam in the name of his father Kundan Singh, at page 5 that he had heard that his father had paid five lakhs rupees to Shayam Singh, not known for which purpose and at page 7 that Nagar Nigam has deleted the name of his father from the demand and collection register, even after affording him opportunity of hearing.
(ii) Purshottam, the elder brother of plaintiff as P.W.-2 has stated in para 2 of his examination in chief that his father Kundan had inherited the property in suit from his father Dhannu and in cross examination at page 1, that his father was two brothers, and name of father's brother was Govind Panwari.
Apart from above, there are material contradictions in statement of plaintiff and his witnesses which have been discussed by trial court in detail. However, it is pertinent to mention that though the property in suit is alleged to be ancestral of plaintiff and is said to have been inherited by father of plaintiff from his father Dhannu, and father had a brother Govind Panwari and five sons Beghraj, Purshottam, Totaram, Gulab Singh and Chandra Sen, but name of none of them finds place in any document of title or property in suit, except that of Kundan Singh, and that with is also alongwith Layalpur Engineering Company & four others in demand and collection register for 1978-83 and with Shyam Singh in demand and collection register for 1994-97, which has been deleted.
Trial court has taken note of the fact that though the plaintiff has claimed that the property as his ancestral but except for the document pertaining house tax and water tax, no other evidence has been produced to demonstrate that at any point of time, the name of his grandfather or father was ever recorded in any of the document pertaining title of the property. Trial court after analyzing the evidence on record has further held that not even a single document, which may demonstrate the title or possession of the ancestors of the plaintiff, has been produced in by plaintiff in order to prove his case and has also failed to establish in what manner the property was acquired by his ancestors. The trial court has rightly held that the plaintiff has neither pleaded nor proved by any iota of evidence, the source of title and possession over the property in suit.
The trial court has also held that paper no. 10Ga/3 produced by the plaintiff goes to show that Kundan Singh, father of the plaintiff was recorded along with four other persons of Loyalpur Engineering Company but they have neither joined as plaintiff nor have been impleaded as defendant in the suit nor any averment has been made in the plaint to explain. It is to be taken note of at this stage that though the plaintiff has not claimed 1/5th share in property and has claimed the whole and subsequently the name of Kundan Singh, father of the plaintiff was expunged even from the said record of Nagar Nigam.
It is settled principle of law that the plaintiff has to stand on his own legs and for obtaining decree for permanent injunction has to prove is exclusive right, title and possession over the property in suit. The plaintiff has claimed property in suit to be his ancestral property of which he is exclusive owner in possession, but he has miserably failed his right, title or possession over the same by any reliable, independent or cogent documentary or oral evidence. The findings recorded by the trial court are based on proper appraisal of oral as well as documentary evidence on record.
The plaintiff/appellant has failed to demonstrate, incorrectness or any manifest error of fact or law in the impugned judgment and decree passed by the lower court and.
The appeal is devoid of merits and is liable to be dismissed and accordingly stands dismissed.
However, there shall be no order as to costs.
Dt. 11.07.2014 vs/nd