Shri Bhagwan & Anr. v. RAKESH KUMAR JAIN, J

The defendants are in second appeal against the judgment and decree of both the Courts below whereby, suit of the plaintiff has been decreed to the extent that the defendants shall not interfere in the plot in dispute i.e. Plot No.38/5/1/20 situated in Village Bainsru Khurd, Sub Tehsil Sampla, Tehsil and District Rohtak, except in due course of law. The material facts of the case are that the plaintiff filed a suit for permanent injunction that he is the owner in possession of plot No.38/5/1/20 (0 kanal -3 marlas) allotted to him being landless person by the State of Haryana vide sale deed No.3257 dated

29.7.1994 having been carved out from the land of the Panchayat Deh. It is alleged that there is a Harijan Basti on the spot. The mutation has also been sanctioned by Haryana Government in his favour, which has been incorporated in the jamabandi. He has RSA No.2193 of 2010 (O&M) - 2 - raised pucca walls upto northern, western and southern side and has got kurdies, bitoras and khutas khore on the suit land where he is tethering the animals. Defendants, who are strong headed persons, are bent upon in interfering in his peaceful possession over the suit property without any rhyme or reason. The defendants’ case is that the allotment in favour of the plaintiff is illegal. It is alleged that BDPO issued a letter No.1463 dated 3.12.2002 to Sarpanch of the Gram Panchayat for enquiry. In this letter, it was made clear that some plots were allotted to persons who were not eligible and a few plots were allotted twice to some persons. In the reply, Sarpanch spelled out the name of the plaintiff at serial No.1. It was also alleged that plaintiff is not residing in village Bainsru Khurd rather he is settled at village Bainsru Kalan. From the pleadings of the parties, the trial Court framed following issues on

13.1.2003: - “1. Whether the plaintiff is owner in possession of the suit property? OPP

2. If issue No.1 is proved in favour of plaintiff whether the plaintiff is entitled to raise construction over the suit property? OPD

3. Whether the jurisdiction of civil court is barred? OPD

4. Whether the present suit is not maintainable? OPD

5. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD RSA No.2193 of 2010 (O&M) - 3 -

6. Whether the plaintiff has not come to the Court with clean hands? OPD

7. Relief.” Both the parties adduced their oral as well as documentary evidence on the basis of which the trial Court decreed the suit. The Aggrieved defendants preferred first appeal, which too was dismissed by the Additional District Judge, Rohtak on

17.3.2010 observing as under: - “The present suit is a suit filed for permanent injunction by the respondent. The controversy revolves around plot bearing no.38/5/1/21 measuring 0 kanal 3 marlas. The law is settled that in suit for injunction the involvement of ownership is not involved and Court is only required to see as to who is in possession of the disputed property. In this regard reliance can be placed upon Ramji Rai and another Vs. Jagdish (dead) through Lrs and another 2007(3) RCR (Civil) 681 wherein it has been held by Hon’ble Supreme Court that in suit for permanent injunction, the court cannot go in question of title of the suit land. Through the appellant claimed themselves to be owner in possession of the suit property since 1975 but have miserably failed to place on record and any evidence to show their possession or to show that they were never allotted the suit property by the Gram RSA No.2193 of 2010 (O&M) - 4 - Panchayat. On the other hand the plaintiff/respondent has proved by oral and documentary evidence that he is in possession of the plot which was allotted to him by State of Haryana vide sale deed No.3257 dated 29.7.1994 Ex.P4 duly registered with Sub Registrar, Rohtak, Mutation No.1276 in this regard is Ex.P1 and as per jamabandi Ex.P2 respondent’s name figured in column of possession and Gram Panchayat is owner of the suit land. The possession of plaintiff/respondent further proves from Ex.D7 i.e. a copy of order dated

24.12.2008 passed by District Revenue Officer (exercising the power of Assistant Controller Ist Grade (Rohtak). A perusal of Ex.D7 shows that Gram Panchayat, Bhansru Khurd, had filed application under order 10-A of Village Common Lands Regulation Act for canceling allotment and taking back possession from the respondents and other. This by itself shatters the case of the appellants because by placing on record Ex.D7 the appellant had admitted that Gram Panchayat had filed a suit for possession against the respondent which shows that the respondents are in possession of the suit property. No doubt the allotment in favour of respondent has been cancelled vide order Ex.D7 but as stated earlier in a suit for permanent injunction only the RSA No.2193 of 2010 (O&M) - 5 - factum of possession is to be seen and even an unauthorized occupant can also be disposed except in due course of law. In the present case the land was allotted to plaintiffs by Gram Panchayat and, therefore, they cannot be disposed even by Gram Panchayat except in due course of law. Apart from the plaintiff had filed suit qua plot No.38/5/1/20 whereas appellants are claiming their possession over plots denoted by Rect/Killa No.38/5/8, 39/1/6 & 38/5/9, 39/1/27 mutation regarding which are Ex.P8 and Ex.P9 on record. Therefore, it cannot be said that aforesaid plot and suit property is one and same plot and in this situation appellant cannot interfere in plot no.38/5/1/20 except in due course of law and, therefore, the trial court has not committed any illegality in decreeing the suit of plaintiff and, therefore, the finding of trial court does not call for any interference.” Against the concurrent finding of fact, the defendants have again come up in second appeal reiterating the arguments raised before the Courts below. Basically, it is alleged that the plaintiff is not in possession as the allotment had been cancelled vide order Ex.D7. In this regard, a firm finding of fact has been recorded by the Courts below that possession of the plaintiff over the suit property is established from document Ex.D7, therefore, till RSA No.2193 of 2010 (O&M) - 6 - the plaintiff is dispossessed in the said proceedings in accordance with law, the defendants who are stranger to the property shall be restrained from interfering in his peaceful possession. After hearing learned counsel for the appellants, I do not find any error in the judgment and decree of both the Courts below where a limited protection has been granted to the plaintiff that his possession shall not be disturbed by the defendants, who would continue to enjoy the same till he is dispossessed in due course of law. Since, no substantial question of law is involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’), therefore, the same is hereby dismissed in liminie, though, without any order as to costs.

27.05.2010 Vivek (RAKESH KUMAR JAIN) JUDGE