Krishan & Ors. v. Ramesh Kumar & Ors.

This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the plaintiff-respondent against the judgment and decree dated 16.7.2008 passed by the Civil Judge (Junior Division), Panchkula dismissing his suit was set aside and a decree was passed restraining the appellants from interfering into the possession of the plaintiff-respondent over the courtyard in question and further directing them to remove the wall and also to open the gate. Brief facts as pleaded by the plaintiff-respondent are that he had purchased 113 kanal 1 Marla of agricultural land along with the house and a courtyard situated within the abadi deh of village Hangola, Tehsil and District Panchkula, as depicted with letters ABCDEFG in the site plan annexed with the plaint, from Sh. Hardwari Lal vide registered sale deed dated 28.12.1990 and was in possession of the said house and the courtyard as owner as he had purchased the entire share of said Hardwari Lal in the abadi deh. It was further pleaded that after purchase of the property, the said house along with courtyard was rented out to different RSA No.1473 of 2010 (O&M) 2 persons and ultimately, it was rented out to Shri Yaad Ram for running a school. Since then, the school namely M.D. Middle School was being run in the said house and courtyard. The entire suit property was being used by the staff and students of the school. Main gate of the house and courtyard opened in gali Share-aam on western side between point JK and a small passage existed on eastern side between point GF as shown in the site plan. As per further pleadings, five patnalas (drain pipes) and two ventilators of his house opened in the courtyard in the eastern side. Old house of the defendants was situated on the eastern side of the disputed house and the courtyard of the plaintiff but they were residing out of the village since long. They visited the village and threatened to encroach upon the house and courtyard in question and they have raised a wall between point LCD and MNOP in the courtyard of the plaintiff and also blocked the main gate of the house and courtyard of the plaintiff between point JK illegally and forcibly in the absence of the plaintiff. Time and again, the defendants were requested by the plaintiff to remove the illegally raised wall and open the main gate of his house and courtyard but they did not accede to his request, which necessitated the filing of the present suit. Upon notice, a joint written statement was filed on behalf of defendants No.2, 3, 5, 6 and 8 (that includes the appellants) raising various preliminary objections. On merits, it was replied that plaintiff had purchased 113 Kanal 1 Marla of agricultural land from Shri Hardwari Lal but in the sale deed no description of the house or courtyard was given and as such plaintiff was not the owner of the house and courtyard in question and courtyard had always been in possession of the defendants and the rasta to the house in dispute which belongs to Shri Hardwari Lal always remained towards Eastern side pucca Gali street Share-aam in between RSA No.1473 of 2010 (O&M) 3 the house and plot of the defendants and a similar suit of same nature had earlier been filed by the plaintiff and the same was dismissed in default. A false story had been concocted by the plaintiff and even the wall mentioned in the plaint was in existence since the time Shri Hardwari Lal raised construction of his house and there arises no question of threatening the plaintiff and the present suit being false and fabricated one, should be dismissed with costs. Replication to the written statement was filed confirming the averments made in the plaint and stating the stand of the defendants to be incorrect on facts as well as on law. On the basis of pleadings of the parties, the following issues were framed; “1. Whether the plaintiff is owner in possession of land depicted in his site plan marked with Letters FEDCLPOMN? OPP

2. If issue No.1 is proved in affirmative, whether the plaintiff is entitled for relief of Mandatory injunction as prayed? OPP

3. Whether the suit of plaintiff is not maintainable in the present form? OPD

4. Whether plaintiff has concealed the material facts from the court, if so, what effect? OPD.

5. Whether suit of the plaintiff is barred by Order 2 Rule 2 of CPC? OPD.

6. Relief.” After hearing the learned counsel for the parties and going through the evidence adduced, the learned trial Court decided issues no.1 and 2 jointly against the plaintiff, holding that he had failed to prove his RSA No.1473 of 2010 (O&M) 4 ownership over the area in dispute. Issues no.3, 4 and 5 were disposed of as not pressed and resultantly, the suit of the plaintiff was dismissed with no order as to costs. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal before the Lower Appellate Court challenging the legality of impugned judgment and decree on several grounds. While accepting the appeal partly, the Lower Appellate Court found that the appellants had admitted the case of the plaintiff-respondent to the extent that the house excluding the courtyard depicted with letters FEDCLOMN was sold by Hardwari Lal to the plaintiff but none of the parties was the owner of the land as depicted in site plan with letters FEDCLPOM and that the plaintiff was in possession thereof. Thus, the defendants were restrained from interfering into the possession of the plaintiff over the courtyard in question and they were further directed to remove the wall between point LCD and MNOP and were also directed to open the gate between point JK as shown in red colour in the site plan Ex.P2 annexed with the plaint. Thus, the impugned judgment and decree of the trial Court was set aside to that extent. Resultantly, the suit of the plaintiff stood decreed partly. Challenging the aforesaid judgment and decree in the present appeal, counsel for the appellants has vehemently argued that the appellants are in possession of the suit property and the plaintiff- respondent has failed to produce any document to show his ownership over the disputed property and therefore, the judgment and decree of the Lower Appellate Court as granted in favour of the plaintiff-respondent for injunction is liable to be set aside. On the basis of the aforesaid argument, learned counsel for RSA No.1473 of 2010 (O&M) 5 the appellants has submitted that the following substantial questions of law arise in this appeal: (i) Whether in the absence of any proof or site plan, the learned District Judge Panchkula can order possession and removal of wall and gate which belong to the appellants? (ii) Whether the documentary evidence produced by the respondent No.1 on record, is sufficient to prove ownership of the disputed land? (iii) Whether in the absence of site plan and location of the land in the sale deed, the respondent is entitled to get possession of the disputed land which belongs to the appellants? (iv) Whether there is sufficient material on record to show the ownership of the land which is 'Sehan' belongs to respondent no.1 though no site plan has been produced along with the sale deed?” I have heard learned counsel for the appellants and perused the impugned judgment and decrees. There is no dispute that the plaintiff-respondent vide sale deed dated 28.12.1990 (Ex.P2) purchased the agricultural land measuring 113 kanals 1 marla along with the house in question in the abadi deh. The dispute is with regard to the courtyard depicted with letters FEDCLOMN. The appellants claim that the aforesaid courtyard adjoins their house and was owned and possessed by them. There is also no dispute with regard to the findings of the Lower Appellate Court that none of the parties has been successful to prove the ownership on the disputed land depicted with letters FEDCLOMN in the site plan. On appreciation of evidence RSA No.1473 of 2010 (O&M) 6 placed on record, the Lower Appellate Court has reached a conclusion that possession of the plaintiff-respondent over the disputed courtyard stood established after discussing various facts established on record i.e. all ventilators or patnalas (drain pipes) of the house of the plaintiff open towards western side of the courtyard; the said courtyard was in natural continuity of house of the plaintiff; there exists a public street on eastern side of the house of the appellants and they have no direct access to the courtyard in question from their house; they do not reside in the village and had shifted long back to some other place and all these facts are indicator of the fact that the claim of the appellants is not based on sound foundation. It is well settled that a person in settled possession is entitled to protect the same against the whole worlds except a true owner. As discussed earlier, the appellants have not been successful to establish themselves as owners of the property in dispute. Thus, the plaintiff- respondent, who is found to be in possession of the property in question, is entitled to permanent injunction restraining the appellants from interfering in his possession. Thus, no error can be found in the judgment and decree of the Lower Appellate Court. No substantial question of law, as argued, arises in this appeal. Dismissed. July 7, 2010 (RAKESH KUMAR GARG) JUDGE