Punjab-Haryana High Court
Bishan Dass And Others vs Tarlok Chand on 25 January, 2010
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.4388 of 2009 (O&M)
Date of decision : 25.1.2010
Bishan Dass and others
....Appellants
Versus
Tarlok Chand
...Respondent
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr. Arvind Singh, Advocate
for the appellants.
.....
MAHESH GROVER, J.
The injunction suit initiated by the plaintiff-respondent against the present appellants was decreed by both the courts below. The dispute pertains to Khasra No.50/2/16 which is alleged to be in possession of the plaintiff-respondent upon which the appellants were seeking to interfere leading to filing of the aforesaid suit. The learned trial court had framed the following issues on the pleadings of the parties:-
1. Whether the plaintiff is entitled for injunction as prayed for?OPP
2. Whether the suit of the plaintiff is not maintainable?OPD
3. Whether the plaintiff has no locus-standi to file the present suit?OPD R.S.A.No.4388 of 2009 (O&M) -2-
4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD
5. Whether the plaintiff has no cause of action to file the present suit?OPD
6. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD
7. Whether the plaintiff is not owner and in possession of the suit property as alleged?OPD
8. Whether the defendants are entitled for special costs under Section 35-A of CPC?OPD
9. Whether the plaintiff has not come to the court with clean hands?OPD
10. Whether the defendant no.3 is khewatdar and has constructed the shops on the Shamlat Deh being a Khewatdar?OPD (2& 3)
11. Relief.
Keeping in view the defence raised by the appellants that they are in possession of the disputed property and have constructed shops on the disputed land which is measuring 1 Marla, both the courts below determined the suit in favour of the plaintiff-respondent on the ground that the fact of possession of the plaintiff/respondent was adequately established.
Aggrieved by the findings of the courts below, the appellants are in appeal and it is contended that the findings recorded by the courts below are perverse and contrary to the record. It is stated that in the earlier proceedings, which were qua Khasra Noo.50/2/17, it R.S.A.No.4388 of 2009 (O&M) -3- was determined that the appellants are in possession and owners of the property and therefore by implication the adjoining land, which is Khasra No.50/2/16 and where shops have been depicted to be constructed, totally belies the case of the plaintiff-respondent that the disputed land is not a Rasta and is a gair mumkin manure pit.
After hearing the learned counsel for the appellants and perusing the record, I am of the opinion that there is no infirmity in the findings recorded by the courts below. The appellants have failed to establish their possession, whereas there is overwhelming revenue record showing the respondent to be in possession of Khasra No.50/2/16 which is the disputed area. Whether Rasta exists or not is not the question to be determined because the only question that arose for the consideration of the court was that whether the respondent was in possession of the disputed property or not. The relevant revenue record shows the father of the plaintiff/respondent Krishan Chand to be in possession of the disputed area and the respondent-plaintiff being the son of Krishan Chand continues to be in possession whereas the appellants failed to show as to how they entered into possession of the disputed land. There is no material on record from which it can be inferred that the appellants are in possession of the suit property and therefore the findings recorded by the courts below on a question of fact cannot be determined to be perverse and contrary to the evidence on record.
No law point arose for the consideration of this Court. The appeal is dismissed.
R.S.A.No.4388 of 2009 (O&M) -4-In view of the dismissal of the appeal the stay application is also dismissed.
25.1.2010 (MAHESH GROVER) JUDGE dss