Ved Kaur v. Joginder Singh

RSA-1893-2025 (O&M) - 1 -

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

137 RSA-1893-2025 (O&M) Date of decision: 10.02.2026 Ved Kaur ...Appellant(s) Vs.

Joginder Singh

...Respondent(s)

CORAM:

HON'BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Deepanshu Mehta, Advocate for the appellant. ****** NIDHI GUPTA, J.

Plain琀椀昀昀 is in Second Appeal against the concurrent judgments and decrees of the learned District Courts; whereby suit 昀椀led by the appellant for declara琀椀on alongwith consequen琀椀al relief of permanent and mandatory injunc琀椀on, has been dismissed by both the District Courts.

2.

The present suit has been 昀椀led by plain琀椀昀昀 against defendant seeking the relief of declara琀椀on that plain琀椀昀昀 is owner in possession of the plot measuring 209 square yards situated in Khewat No. 1248, Khatoni No. 2055, Khasara No. 14434/1570, 15900/1579, 4524/1573, Eastern Side, Near Jind Bye Pass Road, Rohtak (hereina昀琀er referred to as 'the suit property'). Further relief of permanent injunc琀椀on was sought restraining the defendant from raising any construc琀椀on on the encroached por琀椀on. Further, relief of mandatory injunc琀椀on was sought, thereby direc琀椀ng the defendant to remove and vacate the encroached por琀椀on of the land. It was averred in the plaint that plain琀椀昀昀 had purchased the suit property

RSA-1893-2025 (O&M) - 2 - measuring 209 sq.yds. However, defendant intends to interfere in the peaceful possession of the suit property and has encroached upon part of the suit property. Plain琀椀昀昀 had reported the ma琀琀er to the police. However, to no avail. Accordingly, present suit was 昀椀led on 17.03.2018. 3.

Upon appraisal of the pleadings and the evidence led by the par琀椀es, the learned Civil Judge (Junior Division), at Rohtak had dismissed the suit of the plain琀椀昀昀 with costs vide judgment and decree dated 11.05.2022. The Civil Appeal preferred by the plain琀椀昀昀 was dismissed by the learned Addi琀椀onal District Judge, Rohtak vide judgment and decree dated 29.03.2025. Hence, the present second appeal by the plain琀椀昀昀. 4.

It is inter alia, submi琀琀ed by learned counsel for the appellant that the learned District Courts have failed to appreciate that plain琀椀昀昀 had bought the suit property measuring 209 sq.yds. for valuable sale considera琀椀on through registered Sale Deed dated 02.12.1998. The boundary and dimension of the suit property are duly men琀椀oned in the plaint. The ownership and possession of the appellant over the suit property has never been disputed by the respondent. In fact, in the wri琀琀en statement, the respondent has admi琀琀ed ownership and possession of the appellant over the suit property. Yet, appellant has been non-suited. Learned counsel argues that the District Courts have failed to appreciate that registered Sale Deed which forms the basis of the appellant's 琀椀tle, has never been challenged by the respondent on ground of fraud or misrepresenta琀椀on. It is submi琀琀ed that once the execu琀椀on and contents of the registered document have been admi琀琀ed, the onus had

RSA-1893-2025 (O&M) - 3 - shi昀琀ed upon the defendant to disprove the appellant's 琀椀tle, which burden he miserably failed to discharge. It is contended that in the situa琀椀on, learned District Courts have commi琀琀ed serious error in placing unwarranted burden upon the appellant to establish facts already conclusively proved by documentary evidence. It is contended that in view of the fact that defendant had failed to establish a be琀琀er 琀椀tle, decree for possession and injunc琀椀on ought to have followed as a ma琀琀er of course. 5.

Learned counsel for the appellant further submits that the Trial Court has failed to exercise its discre琀椀on judiciously by not appoin琀椀ng a Local Commissioner for the purpose of demarca琀椀on during the trial proceedings, despite clear pleadings and dispute regarding encroachment. This failure resulted in non-ascertainment of the actual posi琀椀on at the spot and deprived the appellant of an essen琀椀al opportunity to prove her case.

6.

It is further submi琀琀ed by learned counsel for the appellant that the learned courts below have grossly erred in law and on facts by not apprecia琀椀ng that minor discrepancies in the measurement of the property cannot overshadow or defeat the substan琀椀ve ownership rights derived from a duly registered sale deed. The iden琀椀ty of the property, as demarcated by clear and undisputed boundaries men琀椀oned in the sale deed and supported by the site plan 昀椀led with the plaint, stood 昀椀rmly established. It is a se琀琀led principle of law that in case of any inconsistency between area measurements and boundary descrip琀椀ons, the boundary descrip琀椀ons shall prevail. The learned District Courts have failed to apply

RSA-1893-2025 (O&M) - 4 - this se琀琀led proposi琀椀on, thereby causing serious prejudice to the appellant's established ownership and possessory rights. 7.

Learned counsel for the appellant further submits that the subsequent appointment of a Local Commissioner by the appellate court during the pendency of the appeal, and the reliance on the said report, has also caused grave prejudice to the appellant, inasmuch as the said report is not in conformity with the actual spot posi琀椀on, is not supported by prescribed procedure, and its conclusions are vague and non-speaking. The appellate court erred in placing reliance upon such a 昀氀awed report, despite objec琀椀ons raised by the appellant.

8.

It is further submi琀琀ed by learned counsel for the appellant that the learned appellate court grossly erred in dismissing the applica琀椀on 昀椀led under Order XLI Rule 27 CPC read with Sec琀椀on 151 CPC, wherein cogent and jus琀椀昀椀able grounds were raised for leading addi琀椀onal evidence, par琀椀cularly that the plain琀椀昀昀, being an illiterate lady, could not appear before the trial court due to health and family issues and her then-counsel failed to guide her properly. Both courts failed to adopt a liberal and jus琀椀ce-oriented approach, and wrongly rejected the request for addi琀椀onal evidence which was essen琀椀al for just adjudica琀椀on of the case. 9.

Learned counsel for the appellant relies upon judgment of Hon'ble Supreme Court passed in Civil Appeal No. 1760 of 2022 琀椀tled as 'Sanjay Kumar Singh vs. The State of Jharkhand, decided on 10.03.2022 to submit that in the said judgment, it has been held by Hon'ble Supreme Court that ".....the admissibility of addi琀椀onal evidence does not depend

RSA-1893-2025 (O&M) - 5 - upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substan琀椀al cause......" Learned counsel contends that in the present case, addi琀椀onal evidence sought to be led by the appellant was necessary to enable the learned First Appellate Court to pronounce the judgment and applica琀椀on of the appellant could not have been dismissed.

10.

Learned counsel for the appellant further submits that the learned courts below erred in ignoring that the husband of the plain琀椀昀昀 had duly appeared and led evidence as PW-1 on behalf of the appellant and supported the case in en琀椀rety. The evidence so recorded was not properly considered and appreciated by the courts, which led to an erroneous 昀椀nding that the plain琀椀昀昀 failed to prove her case. 11.

It is accordingly prayed that the present Appeal be allowed; and impugned judgments and decrees of the District Courts be set aside. 12.

No other argument is raised on behalf of learned counsel for the appellant. I have heard learned counsel and perused the case 昀椀le in great detail. I 昀椀nd no merit in the submissions advanced on behalf of learned counsel for the appellant.

13.

First and foremost, it is to be seen that the plain琀椀昀昀 has failed to step into witness box to plead and prove her case. Moreover, plain琀椀昀昀 is claiming 琀椀tle over the suit property vide Sale Deed dated 02.12.1998.

RSA-1893-2025 (O&M) - 6 - However, despite repeated Court queries, learned counsel for the appellant is unable to inform this Court as to why the said Sale Deed was not produced by the appellant before the learned District Courts. It is my view that in the absence of the Sale Deed and in view of the fact that plain琀椀昀昀 herself has not stepped into witness box, plain琀椀昀昀 has miserably failed to establish her case/琀椀tle that she is owner in possession of the suit property measuring 209 sq.yds.

14.

Record further reveals that except for the Site Plan, plain琀椀昀昀 had produced nothing on record to prove the alleged encroachment. Further except the oral evidence of the husband of the plain琀椀昀昀, there is no material on record to substan琀椀ate her version that defendant has encroached on the suit property. Admi琀琀edly, plain琀椀昀昀 had also failed to demarcate the suit property to prove her case and to prove the alleged encroachment. It is trite law that plain琀椀昀昀 has to prove her own case. 15.

To the contrary, defendant had succeeded in proving that he had purchased 1/6th share of adjoining plot measuring 1210 sq.yds. vide Sale Deed dated 10.05.1991 i.e. prior to the plain琀椀昀昀. Thus, defendant was owner in possession of his plot measuring 202 sq.yds. since 1991. Accordingly, defendant had vehemently denied that he was encroaching upon the suit property and trying to interfere in the peaceful possession of the plain琀椀昀昀 over the suit property.

16.

Before the learned First Appellate Court, appellant had also 昀椀led an applica琀椀on under Order 41 Rule 27 CPC red with Sec琀椀on 151 CPC. On a Court query, learned counsel for the appellant has informed that by

RSA-1893-2025 (O&M) - 7 - way of addi琀椀onal evidence, appellant had wanted to examine herself and produce the demarca琀椀on done at the 琀椀me of execu琀椀on of Sale Deed. However, the said applica琀椀on of the appellant has been dismissed by the learned First Appellate Court for cogent reasons as recorded in para 21 of the judgment dated 29.03.2025 which reads as under:- "21.

So, considering the averments made in the applica琀椀on and the reply 昀椀led, which are seen in the light of the proper relevant facts which have bearing on the issues involved and considering the same, the averments made in the applica琀椀on, itself re昀氀ects that it does not ful昀椀ll the legal requirements of the provisions of order XLI Rule 27 C.P.C. The perusal of learned trial court record re昀氀ects that the present Civil Suit bearing No.CS-269-2018 has been 昀椀led by the plain琀椀昀昀 on 17.03.2018, a昀琀er service of defendant was completed and wri琀琀en statement was 昀椀led, issues were framed on 16.08.2018, then from 10.10.2018 琀椀ll 27.01.2020, about 9 opportuni琀椀es were granted to the plain琀椀昀昀 to lead and complete her evidence. PW Hazari lal, husband of plain琀椀昀昀 had been examined by plain琀椀昀昀 on her behalf in this case. On 18.12.

2019, the last opportunity subject to imposi琀椀on of cost was granted to the plain琀椀昀昀 to complete her evidence but the plain琀椀昀昀 neither led any further evidence nor cost paid and the evidence of the plain琀椀昀昀 was closed by court order dated 27.01.2020, then opportuni琀椀es were granted to the defendant to lead their evidence, the defendant evidence was closed on 15.09.

RSA-1893-2025 (O&M) - 8 - 11.05.2022. The learned trial court has returned the 昀椀ndings on the issues involved and now 昀椀ling by the present applica琀椀on, it transpires that the plain琀椀昀昀 wants to remove the de昀椀ciencies of her case of which, 昀椀ndings have been returned by the learned trial Court and the same cannot be allowed by way of 昀椀ling the present applica琀椀on seeking leading of addi琀椀onal evidence. Ample opportuni琀椀es have been granted to both the par琀椀es by the learned trial court to lead their evidence in terms of their pleadings and issues involved, the plain琀椀昀昀 is the master of her suit and a昀琀er the case is decided, the plain琀椀昀昀 cannot claim that plain琀椀昀昀 was unaware of the legal proposi琀椀on of law as in law, it is not an excuse. Moreover, the legal ingredients under Order XLI rule 27 CP.C.

has not been ful昀椀lled as detailed in clause a, (aa) and the clause (b), so no such addi琀椀onal evidence or any document is required by the appellate court for the just decision of this case. So, considering the facts as appeared on record, no such addi琀椀onal evidence is required which will assist the court in coming to the just conclusion of deciding the appeal on merits considering the issues involved in the present appeal."

17.

Accordingly, applica琀椀on of the appellant for addi琀椀onal evidence came to be dismissed for the above said reasons which do not require interference.

18.

Alongwith the appeal, appellant had also 昀椀led an applica琀椀on under Order 26 rule 9 read with Sec琀椀on 151 CPC, which was allowed by the learned First Appellate Court vide order dated 17.07.2023; whereby Tehsildar was directed to demarcate the land. Pursuant to the said order, Halqa Kanungo, Rohtak has submi琀琀ed his report alongwith copy of

RSA-1893-2025 (O&M) - 9 - Jamabandi for the year 2019-2020, copy of Aks-shizra and copy of muta琀椀on, as per which, it was reported that there is no encroachment at the spot by the defendant on the property as alleged by the plain琀椀昀昀. Admi琀琀edly, the said demarca琀椀on was carried out by Halqa Kanungo in the presence of the appellant. During the course of arguments, Learned counsel for the appellant has admi琀琀ed that the appellant had par琀椀cipated in the demarca琀椀on; and no objec琀椀ons were 昀椀led by the appellant to the said Demarca琀椀on Report. Thus, even as per the report of Halqa Kanungo, plea of encroachment of the appellant stood falsi昀椀ed. Admi琀琀edly, demarca琀椀on was carried out with the help of DGPS Machine in the presence of both the par琀椀es a昀琀er taking into account the relevant revenue record.

19.

Thus, from the above noted facts and 昀椀ndings, it is clear that appellant was unable to prove any encroachment by the respondent/defendant. The aforesaid judgment in Sanjay Kumar Singh supra relied upon by ld. counsel for the appellant is dis琀椀nguishable on facts and law and appellant cannot derive any bene昀椀t from the said judgment.

20.

Learned counsel for the appellant is unable to controvert or dispute the above said facts and 昀椀ndings.

21.

In view of the above, no ground is made out to interfere in the concurrent judgments and decrees of the learned District Courts. The present Regular Second Appeal is hereby dismissed.

RSA-1893-2025 (O&M) - 10 - 22.

Pending applica琀椀ons, if any, stand disposed of. 10.02.2026 (NIDHI GUPTA) Divyanshi JUDGE Whether speaking/reasoned:

Yes/No Whether reportable:

Yes/No