Punjab-Haryana High Court
Bhule And Others vs Rajpal And Others on 29 March, 2012
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
RSA No. 2195 of 2011 (O & M) 1
THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 2195 of 2011 (O & M)
DATE OF DECISION: March 29, 2012
Bhule and others .........APPELLANT(S)
VERSUS
Rajpal and others ......RESPONDENT(S)
CORAM: HON'BLE MR. JUSTICE G.S. SANDHAWALIA
Present: Mr. Raj Mohan Singh, Advocate,
for the applicant-appellants.
Mr. B.R. Vohra, Advocate.
Mr. S.R. Hooda, Advocate.
G.S. SANDHAWALIA, J.
1. The present appeal has been filed by the defendants, who are aggrieved against the concurrent findings of the Courts below whereby, the suit for permanent injunction and mandatory injunction and for removal of encroachments has ben decreed by the Courts below. The case of the plaintiff was that an injunction should be granted restraining the defendants from taking illegal and forcible possession of the plot shown with letters ABCD in the site plan and from interfering in the peaceful possession of the plaintiff. In the alternative, it was pleaded that if the defendants are found in possession of the plot in dispute or any part thereof, they be directed to remove the illegal possession.
2. The plaintiff pleaded that he was owner in possession of the gher situated in the abadi of villate Patla, Tehsil and District Sonepat, which RSA No. 2195 of 2011 (O & M) 2 were shown in letters ABCD in the site plan and the same had been in his possession since the time of his forefathers and there were mangers for the cattle and the plaintiff tethered his cattle in the said gher. The boundary wall had been constructed about 40 years back and there were old Neem and Kikar trees. In the year 1974, a dispute had arisen between Puran and Tule regarding a plot adjacent to the plot in dispute and a settlement had been arrived at in the Panchayat. In the said settlement, boundaries of the disputed plot had been shown and the settlement had been incorporated in Resolution No. 16 dated 12.10.1974 passed by the Gram Panchayat in which Lal Singh, father of the plaintiff, was shown in possession. The defendants had been trying to take the possession of the plot since 1977 and in October, 1978, they had set the stack of pullies belonging to the plaintiff on fire and a criminal case had been registered under Sections 435/34 IPC against all the defendants except defendants no. 2 and 5 who had been challaned and convicted. The appeal preferred against the conviction had also been dismissed. Proceedings under Section 145 Cr.P.C. had also been initiated with a view to prevent the breach of peace and in that proceedings, the SDM, Sonepat, after taking evidence of both the parties, found the plaintiff in possession and the defendants were not found in possession of the plot. Defendant no. 2-Chander Singh had filed revision against that order in the Court of Additional District Judge, Sonepat and the case was remanded to the SDM, Sonepat and the SDM again decided the case on 28.10.1986 and held the plaintiff in possession of the plot in dispute. The plot was situated within the abadi deh and had not been partitioned and no separate numbers had been allotted to the plots and the police had wrongly mentioned numbers of the plots as 262 and 263 in the proceedings under RSA No. 2195 of 2011 (O & M) 3 Section 145 Cr.P.C. and in the kalandara prepared under Section 145 Cr.P.C. regarding plot bearing No. 262, Raghbir Singh was held to be in possession of the plot. Both the parties had gone in revision and the Court of Additional District Judge, Sonepat remanded the case to the SDM, Sonepat vide order dated 21.09.1987 for clarifying whether plot Nos. 262 and 263 were two separate plots or one plot and the SDM had asked the Tehsildar to make a repot on 15.02.1991 and the plaintiff was found in possession and there were no plots bearing Nos. 262 and 263 in abadi deh. Accordingly, it was contended that the SDM terminated the proceedings on 17.03.1995 for non-appearance of the parties and the plaintiff had filed a revision in the Court of Additional District and Sessions Judge, Sonepat and the defendants were taking advantage of the termination of the proceedings under Section 145 Cr.P.C. and tried to take possession of the plot illegaly. On 10.01.1998, the defendants forcibly tethered their cattle and raised two temporary huts with a view to show their possession over the plot. They also placed some bricks for which the plaintiff filed an application for contempt and requested the defendants many times not to interfere in their possession but the defendants refused to accept the said request.
3. The suit was contested by the defendants, who raised various preliminary objections regarding maintainability of the suit, locus standi etc. and stated that the plaintiff was neither owner in possession and the suit was in respect of two ghers which were different and separate. The gher owned by defendants comprising in khasra no. 263 measured 454.6 sq. yards and on the north of his gher, there was another gher bearing khasra no. 262 owned by Ved Parkash-defendant no. 8. The Khasra Nos. 262 and 263 pertained to the settlement of 1879-80 and were in possession of the RSA No. 2195 of 2011 (O & M) 4 ancestors of the defendants at the time of settlement. The plaintiff had no right, title or interest in the gher in dispute and the ancestors of the plaintiff were never in possession of the gher. It was accordingly contended that the defendants had constructed four khors, a tin shed and two chhappers several years back and stacked more than 20,000 bricks and it was being used for tethering their cattle and number of trees were standing in the said gher and the defendants had constructed boundary wall on the eastern and southern side of the gher bearing No. 263 and laid foundation towards western side. The northern side of the gher was still open. The defendants were not aware of any dispute between Puran and Tule in the year 1974 and it was stated that Lal Singh, who was the father of the plaintiff and was Sarpanch had wrongly shown the plot in dispute in the resolution No. 16 of 1974 and the same was not binding upon the defendants. The facts of setting the pullies on fire in the year 1978 was denied and it was pleaded that the criminal case under Sections 435/34 IPC against the defendants was false. The proceedings under Section 145 Cr.P.C. had been terminated and no final order had been passed in respect of the suit property and the report of the Tehsildar was not relevant and not admissible.
4. After hearing both the parties, the trial Court framed the following issues:-
"1.Whether the plaintiff is owner in possession of the gher marked by letters ABCD, as alleged, and relief of permanent injunction as prayed for? OPP
2. Whether the suit is not maintainable in the present form? OPD RSA No. 2195 of 2011 (O & M) 5
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the plaintiff does not disclose any cause of action to file the present suit? OPD
5. Whether the suit is bad for non-joinder of necessary parties? OPD
6. Relief."
5. After considering the documents on record and 4 plaintiff's witnesses and the deposition of 3 defendants' witnesses, the trial Court came to the opinion that the history of litigation was more than 30 years old between the parties and the plot was abadi deh plot and without any revenue record and the case was to be decided on the preponderance of evidence. Accordingly, it placed reliance on the resolution dated 12.06.1974 Ex. P-1 in which there was allotment of plots to Puran and Suraj and the suit property was shown as belonging to Lal Singh, father of the plaintiff. The resolution had been passed during the tenure of Tek Chand and not Lal Singh and the document was written by persons who were strangers to the controversy and had no interest in the subject matter and the document could be relied upon. The criminal proceedings between the parties from the year 1978 was also noticed when the FIR under Sections 435/34 IPC had been registered against some of the defendants when they had put on fire the stack of pullies belonging to the plaintiff kept in his gher and the defendants had been convicted for the said criminal offence and judgments Annexures P-4 and P-8 were kept in consideration. Accordingly, it was held that though the criminal Court findings were not binding but they could not be rejected being irrelavent for all practical purposes. The proceedings RSA No. 2195 of 2011 (O & M) 6 under Section 145 Cr.P.C. were also taken into consideration and the report of the Tehsildar in favour of the plaintiff was accepted in view of the defendants' witnesses Jeet Singh admitting the said report dated 15.02.1994, in which the possession of the plaintiff was shown over the suit property.
6. Accordingly, it was held that the defendants had encroached upon the suit property after the filing of the suit and the witnesses of the plaintiff had deposed about this fact and once the possession had been taken after the order of status quo had been passed by the Court and possession obtained after the filing of the suit, it was held that the plaintiff was entitled to get the possession back and accordingly it was held that the plaintiff was entitled for injunction and mandatory injunction in the nature that the defendants were to remove their illegal possession within one month from the plot in dispute shown in red colour with letters ABCD in the site plan vide judgment and decree dated 23.11.2009. The defendants filed appeal before the Lower Appellate Court which was dismissed on 25.02.2011 and resultantly, the present regular second appeal has been filed.
7. Counsel for the appellants has contended that it is abadi deh land and all the proprietors of the village are co-sharers and it being joint land, all of them were co-owners in possession and co-owners were not entitled for injunction untill ouster was pleaded and proved. Reliance has been placed upon a Full Bench judgment of this Court rendered in Bhartu vs. Ram Sarup, 1981 PLJ 204. It is also contended that the proceedings under Section 145 Cr.P.C. initiated by the plaintiff had been dropped by the SDM and, therefore, reliance placed upon them was wrong apart from the fact that the Courts had unnecessarily placed reliance upon the judgment of conviction passed by the criminal Court.
RSA No. 2195 of 2011 (O & M) 7
8. The submission of the counsel for the appellants is not acceptable for various reasons. The defence of the appellants was that there were two plot numbers 262 and 263 and they were in possession of the said plots. No such issue regarding the defendants being co-sharers of the property was ever raised and neither can it be allowed to be raised in a regular second appeal. The Courts below have concurrently come to the conclusion that the defendants did not submit any site plan to show that there were any plot numbers 262 and 263 though in the written statement, it was averred that the site plan would be filed at the time of evidence. Once, such a defence had been taken, it was for them to prove that the area in dispute was in their possession on the basis of ownership or allotment but no such evidence has been placed on record. The plaintiff has successfully proved that he was in possession of the property in question as he has shown a resolution of the Gram Panchayat wherein, a dispute between two persons was put down in writing and the boundaries depicted the possession of the father of the plaintiff in the plot in question. The factum of criminal litigation between the parties is a matter of record in view of the judgment of the Additional Chief Judicial Magistrate, Sonepat on 21.02.1981 wherein, conviction was recorded against some of the defendants in FIR No. 172 lodged in October 1978 under Sections 435/34 IPC. The said conviction was subsequently upheld by the Additional Sessions Judge, Sonepat on 24.07.1981 and the said judgments are placed on record as Exs. P-8 and P-4 respectively. and the relevancy of the judgments is a fact in issue under Section 43 of the Indian Evidence Act, 1872. The witness of the defendants-Jeet Singh admitted that the plaintiff was in possession and it was on the basis of that the report of the Tehsildar has been held to be proved as he admitted the RSA No. 2195 of 2011 (O & M) 8 factum of the said report. The Courts have also noticed that the receipt Ex. D-3 whereby, the defendants had purchased tin sheets after the order of status quo and thus at this stage held that the defendants have entered into possession after the Court had granted the status quo and, therefore, rightly given the relief of mandatory injunction to restore possession at the time of filing of the suit since it was the specific case of the plaintiff that the defendant had raised construction on the plot in dispute after entering on it on 10.01.1998. The cumulative effect of all these facts go on to show that possession of the plaintiff was there since 1974 and the parties had been fighting over the plot in dispute and FIR had also been loged in the year 1974 and in view of the admission of the defendants themselves regarding the report of the Tehsildar, it was proved that the possession was with the plaintiff which had been taken during the pendency of the suit. The reasoning given by the Courts below cannot be said to be perverse or liable for interference in regular second appeal since no substantial question of law arises for consideration before this Court.
9. Resultantly, the present regular second appeal is dismissed and the judgments and decrees of the Courts below are upheld.
29.03.2012 (G.S. SANDHAWALIA) shivani JUDGE