State of Haryana & Anr. v. Harpal Kaur & Anr.

its principal appellant-defendants (hereinafter to be referred as “the defendants”) against the impugned judgment and decree dated 24.1.2008, whereby, the trial Court has decreed the suit for permanent injunction, filed by Labh Singh (since deceased), being represented by his legal representatives respondent-plaintiff (hereinafter to be referred as “the original plaintiff”). The defendants have also challenged the judgment and decree dated 20.1.2010, vide which, their appeal was dismissed as well, by the Ist Appellate Court.

2. The epitome of the facts, relevant for disposal of the present appeal and emanating from the record, is that the plaintiff filed the present suit for decree of permanent injunction restraining the defendants from raising any construction and interfering into his lawful ownership and possession over the property in dispute, inter-alia, pleading that Hazoora Singh, father of the original plaintiff, was the owner and in possession of the same. Earlier, Municipal Committee (for brevity “the Committee”), Mandi Dabwali started denying their ownership, which necessitated Hazoora Singh to file civil suit No.664 of 1975, which was decreed in his favour, vide judgment and decree dated 24.10.1975. Hazoora Singh was declared owner and in possession of the disputed property in that suit. The appeal filed by the Committee was also dismissed on 29.9.1976. After the death of Regular Second Appeal No.1662 of 2010 2 Hazoora Singh, the original plaintiff became owner and in possession of the suit property by way of succession.

3. Levelling a variety of allegations, in all, according to the original plaintiff, he was owner and in possession and the defendants have no right to raise any construction over the property in dispute and to interfere into his (plaintiff) lawful possession. He (plaintiff) asked the defendants not to encroach upon his property, but in vain, which necessitated him to file the present suit. On the strength of ownership and possession, the plaintiff filed the suit for decree of permanent injunction against the defendants, in the manner stated here-in-above.

4. The defendants contested the suit and filed the written statement, in which, the ownership and possession of disputed property of the original plaintiff, was denied. The factum of decision of earlier suit was admitted. However, it was claimed that earlier decision in the case between the plaintiff and the Committee has no concern with the defendants and they are not bound by it. The property in dispute was stated to be the property of Government School (defendant No.2). It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

5. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for proper adjudication of the case:-

1. Whether the plaintiff is owner in possession of the suit land/property detailed in the head note of the plaint?OPP

2. If issue no.1 is proved, whether the plaintiff is entitled to relief of permanent injunction as prayed for?OPP

3. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD 3-A Whether the suit of the plaintiff is not maintainable in the present form?OPD

4. Whether the suit of the plaintiff is time barred?OPD

5. Whether the plaintiff has not affixed the proper court fee on Regular Second Appeal No.1662 of 2010 3 the plaint?OPD

6. Whether the plaintiff has concealed true and material facts from the court, thus, he is not entitled to any relief from the court?OPD

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

8. Whether the suit of the plaintiff is bad for nonjoinder and misjoinder of necessary parties?OPD

9. Relief.

6. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective stands.

7. The trial Court, after taking into consideration the evidence on record, decreed the suit of the plaintiff, vide impugned judgment and decree dated

24.1.2008.

8. Aggrieved by the judgment and decree of the trial Court, the appellant-defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 20.1.2010.

9. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

10. After hearing the learned State counsel and after going through the record with his valuable help, to me, there is no merit in this appeal.

11. The main argument of the learned State counsel that since the plaintiffs have failed to prove their ownership and possession over the disputed property, so, the Courts below fell in error in decreeing their suit, is not tenable. It is not a matter of dispute that Hazoora Singh was the owner and after his death, the plaintiffs have inherited the suit property by way of inheritance from him. The Committee started denying the ownership/possession of Hazoora Singh, which necessitated him to file the suit. The earlier suit was decreed vide judgment (Ex.P6) and decree (Ex.P7), in which Hazoora Singh, the predecessor-in-interest Regular Second Appeal No.1662 of 2010 4 of the plaintiff, was held to be owner and in possession of the disputed property. The mere fact that the government school-defendant No.2 was not the party to the suit, will make no difference because DW1 Darshna Devi, Principal of the defendant-School, has categorically admitted that earlier, the school was under the control of District Board, Hisar and thereafter it came under the control of the Municipal Committee, Mandi Dabwali. Once, the defendant-School was under the control of the Committee, then, in that eventuality, the earlier decree, in which, the Committee was the party, is also binding on the defendants, under the present set of circumstances.

12. Not only that, besides the oral evidence, the plaintiffs have also produced on record the order dated 2.9.1957 (Ex.P1) passed by the Naib Tehsildar, copies of Aksh-shijra (Ex.P2 and Ex.P3), resolution (Ex.P4) and site plan (Ex.P5), in order to prove their ownership and possession, besides the judgment and decree (Ex.P6 and Ex.P7) respectively in the earlier suit. Hence, the plaintiffs are proved to be owners and in possession of the disputed property.

13. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the defendants, have already been duly considered and dealt with by the Courts below, in this relevant connection, .

14. Moreover, the Courts below have taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that the plaintiffs are proved to be owners and in possession and the defendants have got no right, title or interest to encroach upon the property in dispute. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel Regular Second Appeal No.1662 of 2010 5 for the appellant-defendants, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard.

15. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the instant case.

16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellants.

17. In the light of the reasons mentioned here-in-above, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) Judge

9.7.2010 AS