Punjab And Haryana High Court · 2010

CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG

1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Sachin Mittal,Advocate for the appellant **** RAKESH KUMAR GARG J. CM No.12603-C of 2009 For the reasons mentioned, delay of 119 days in refiling the appeal is condoned. CM disposed of. CM No.12604-C of 2009 Civil Misc.application is allowed subject to all just exceptions. CM disposed of . RSA No.4162 of 2009(O & M) Appellant, who was defendant No.3, before the trial Court has filed the instant appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for permanent injunction restraining the defendants from interfering in their peaceful possession over the suit land and also from raising construction over the suit property illegally and forcibly, was decreed. As per the averments made in the suit, plaintiff Jhabbu RSA No.4162 of 2009(O & M) 2 (predecessor-in-interest of respondent Nos.1 to 5) filed the present suit alleging therein that he along with his brothers and sisters was owner in possession of land measuring 1 marlas comprised in Khewat No.91/96, rectangle No.69 killa No.20/7(0-1) situated in village Pinangwan, Tehsil Punhana, District Gurgaon. The plaintiff and his brothers and sisters were in continuous possession of the suit land and were using the same as manure pit since the time of their forefathers and the defendants being strangers had no right, title or interest in the suit land. The defendants intended to interfere in the peaceful possession of the plaintiff over the suit property. The plaintiff requested the defendants several times not to interfere into his peaceful possession but defendants did not accede to the request. Hence the present suit. Upon notice, defendants filed written statement raising various preliminary objections. On merits, it was denied that the plaintiff or his brothers and sisters were owners in possession of the suit land. It was further denied that the plaintiff and his brothers and sisters were coming in possession of the suit land as owners thereof or they were using the same as manure pit. It was further submitted that the suit land was acquired for construction of road and the same is already in existence and possess in the suit land. The plaintiff was fully aware of this fact and had not intentionally disclosed the name of his brothers and sisters. The road constructed adjacent to the defendants land consisting killa No.69/20/1 is separate from the defendants land by a pucca boundary wall and the plaintiffs had no right to seek injunction against the defendants. Since the plaintiff was not in possession of his land, which was converted into pucca road, he was not entitled to any injunction. Dismissal of the suit was prayed for. In the replication, plaintiff reiterated his case and controverted the averments made by the defendants. It was contended RSA No.4162 of 2009(O & M) 3 that no competent authority had acquired the land, neither any road was in existence. On the pleadings of the parties, the following issues were framed by the trial court:

1. Whether the plaintiff along with his brother and sister is owner in possession of the suit land detailed in para No.1 of the plaint?OPP

2. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD

3. Whether the suit of plaintiff is bad for non-joinder of necessary parties?OPD

4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD

5. Whether the suit is not maintainable?OPD

6. Whether the plaintiff has concealed the material facts from the court?OPD

7. Relief. After recording the evidence and hearing the learned counsel for the parties, the trial Court decreed the suit with costs. Not satisfied with the impugned judgement and decree of the trial Court, defendants preferred an appeal which was also dismissed. While dismissing the appeal, the Lower Appellate Court recorded a finding of fact that the plaintiffs were owners in possession of the manure pit bearing killa No.20/7. However, the stand of the defendants that land of killa No.20/7 is not existing on the spot as the same was covered under the road could not be proved. Still not satisfied, the appellant has approached this court by filing the instant appeal. Learned counsel for the appellant has vehemently argued that the impugned judgement and decrees are the result of misreading of the evidence and therefore judgement and decrees of the RSA No.4162 of 2009(O & M) 4 courts below are liable to be set aside being perverse and therefore the following substantial questions of law arise in this appeal:

1. Whether the impugned judgements and decrees are the result of misreading of the evidence?

2. Whether documents can be refused to be exhibited particularly when the same is available on record duly proved by the witness through inadvertently remains to be marked as a particular exhibit? I have heard learned counsel for the appellant and perused the impugned judgement and decrees of the courts below. The plaintiff-defendants are recorded as owners in possession of the suit land in the jamabandis. Presumption of truth is attached to these jamabandis under Section 44 of the Punjab Land Revenue Act. There is no cogent and convincing evidence to rebut the aforesaid documentary evidence. Admittedly,plaintiff/respondents were the owners of the suit land and the defendants are not claiming their ownership over the aforesaid land. However, the stand taken by them is that the suit land was acquired by the State Government for construction of the road. However, this stand taken by the appellant could not be proved. Thus, there is no scope for interference with the findings recorded by the courts below as the plaintiff/respondents are proved to be owner in possession of the disputed property. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed.

03.05.2010 (RAKESH KUMAR GARG) JUDGE