Punjab-Haryana High Court
Fakira And Anr vs Mittul Mongia And Ors on 28 August, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
R.S.A.No.712 of 2013 -1-
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No.712 of 2013
Date of Decision: 28.8.2014
Fakira and another
---Appellants
versus
Mittul Mongia and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr.Atul Gaur, Advocate
for Mr. Sumeet Goel, Advocate
for the appellants
Mr.Rajesh Arora, Advocate
for respondents No. 1 and 2
Mr. Rakesh Dhiman, Advocate
for LRs. of respondents No. 3 to 6
***
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
***
REKHA MITTAL, J.
The present appeal has been directed against the judgment and decree dated 21.12.2012 passed by the appellate court (Additional District Judge, Gurgaon) dismissing the appeal of the appellants and affirming the judgment and decree dated 6.5.2008 passed by the Civil Judge (Junior Division), Gurgaon decreeing the suit of the plaintiffs (respondents No. 1 R.S.A.No.712 of 2013 -2- and 2) for possession of the land in dispute.
Smt. Ganeshi Bai widow of Sunder Dass and Ramesh Chand Mehta, Advocate son of Sh. Amir Chand filed suit for possession, mandatory injunction and permanent injunction in regard to 05 biswas of land bearing Ahata No. 32 Hadbast No. 108 marked by letters 'JKLM' in the site plan attached with the plaint situated in village Sihi, Tehsil and District Gurgaon on the premise that the plaintiffs are co-owners of the suit land to the extent of ½ share each being the successors-in-interest of the previous owners. It is averred that originally the land was allotted to Sh. Tahlia Ram son of Ram Chander by Department of Rehabilitation vide No. S-111-19 (44) (54)1 and (54) 2 on 30.8.1955 and 24.3.1955, respectively. The said piece of land was inherited by Amir Chand, son, Smt. Ganeshi Bai, daughter and Smt. Ashi Bai, widow of said Tahlia Ram to the extent of 1/3rd share each. After death of Ashi Bai in 1989, mother of plaintiff No. 1 and grand mother of plaintiff No. 2 her share was inherited by Smt. Ganeshi Bai and Amir Chand to the extent of ½ share each. After death of Amir Chand on 8.2.1996, ½ share of Amir Chand was succeeded by plaintiff No. 2 by way of registered Will and in this manner, the plaintiffs have become co-owners to the extent of ½ share each in the suit land.
The plaintiffs earlier filed civil suit bearing No. 612 of 9.1.1987 when defendant No. 1 (Fakira, appellant) started to interfere in peaceful possession and ownership of the suit land which was dismissed in default on 20.7.1992. During pendency of the aforesaid suit, defendant No. 1 occupied the portion marked by letters 'ABCD' shown in read colour and raised construction thereon. Defendant No. 2 occupied portion marked by R.S.A.No.712 of 2013 -3- letters 'CDEF' shown in blue colour and raised constructions thereon about 5/6 months ago. Defendant No. 3 occupied the portion marked by letters 'EGHJ' shown in yellow colour and also raised construction thereon about 2/3 months ago. The remaining portion marked by letters 'FGHKLMABF' is lying vacant which is under possession of the plaintiffs. The defendants have occupied the above portions illegally, forcibly and unlawfully to which they have no right.
Defendants No. 1 to 4 and 6 filed joint written statement seriously contesting the claim of the plaintiffs. They have challenged locus standi of the plaintiffs to file the suit; suit being without cause of action; time barred; not maintainable in the present form and the plaintiffs being estopped from filing the suit by their own acts and conduct. They have denied the plaintiffs to be co-sharers/co-owners of the land with the averments that answering defendants are the original owners in possession since times immemorial. All other material averments have been denied with a prayer for dismissal of the suit. Defendant No. 5 filed the written statement admitting the claim of the plaintiffs.
The controversy between the parties led to framing of following issues by the trial court:-
1. Whether the plaintiffs are coming as co-sharers/co-owners to the extent of ½ share each in respect of piece of land as mentioned in para No. 1 of plaint?OPP
2. Whether the plaintiffs are entitled for a decree for possession of the suit property as prayed in Para No.1 of the plaint?OPP
3. Whether the plaintiffs have no locus standi and cause of R.S.A.No.712 of 2013 -4- action to file the present suit? OPD
4. whether the suit is time barred? OPD
5. Whether the suit is not maintainable in the present form?OPD
6. Whether the plaintiffs are estopped from filing the present suit by their own acts and conduct?OPD
7. Relief.
The learned trial court permitted the parties to lead evidence in support of their respective claims.
After having heard counsel for the parties and appraisal of evidence adduced on record, the trial court decided Issues No. 1 and 2 taken up jointly in favour of the plaintiffs whereas Issue Nos. 3 to 6 have been answered against the defendants and as a result, the suit of the plaintiffs for possession was decreed against defendants No.1 to 3 by ejecting them by demolishing construction raised on portions marked by letters 'ABCD', 'CDEF', 'EGHI' by defendants No. 1 to 3 respectively and all the defendants have been restrained from interfering in peaceful possession and ownership of the plaintiffs over portion marked by letters 'BFGHKLMAB' depicted in the site plan. The judgment and decree passed by the trial court has been affirmed in appeal by the Additional District Judge, Gurgaon.
Feeling dissatisfied with the judgments of both the courts below, the present regular second appeal has been preferred by Fakira and another.
The sole submission made by counsel for the appellants is that the trial court and the appellate court seriously erred in passing a decree for possession against the appellants when the plaintiffs-respondents have R.S.A.No.712 of 2013 -5- miserably failed to establish identity of the suit property to connect it with the allotment made in favour of Tahlia Ram in the year 1955. It is argued with vehemence that the plaintiffs filed an application for appointment of revenue officer/official as Local Commission directing him to locate and demarcate Ahata No. 32 Hadbast No. 108, 05 biswas of portion allotted to Tahlia Ram son of Ram Chander situated in village Sihi, Tehsil and District Gurgaon. Counsel representing defendants raised no objection in this regard and the court vide order passed on 21.8.2000 appointed Kanoongo Custodian as Local Commission with a direction to locate and demarcate Ahata No. 32, Hadbast No. 108, 05 Biswas portion situated at village Sihi. Gian Chand, Sadar Kanoongo submitted his report Ex. PW9/A accompanied by report of Naib Tehsildar dated 3.5.2002 Ex. PW9/B and report of Halqa Patwari Ex. PW9/C to the effect that as no record is available, therefore, it is not possible to conduct demarcation at the spot. It is further argued that it is none of the plea of the plaintiffs-respondents that Ahata No. 32 Hadbast No. 108 is consisted of only 05 biswas of land which was allotted to Tahlia Ram in the year 1955 when on the contrary, Gulshan Rai, Kanoongo PW8 has deposed that as per record maintained in his office, the area of plot No. 32 has been shown to be 6823 square feet i.e. more than 2000 square yards. It is argued with vehemence that the courts below have grossly erred in relying upon the pleadings of the defendant in the earlier suit for injunction filed by Amir Chand and others against Fakira defendant No.1 wherein he denied ownership and possession of the plaintiffs over the suit land with the plea that the defendant is in possession for more than 30 years and has become owner by way of adverse possession.
R.S.A.No.712 of 2013 -6-
Counsel for the respondents-plaintiffs has urged that the plaintiffs have produced number of documents on record to substantiate their plea that the suit land was allotted to Tahlia Ram, their predecessor- in-interest vide Sanad dated 24.3.1955 and defendants No. 1 to 3 have illegally occupied the portions of land reflected in the site plan in different colours with different marking. It is further submitted that concurrent findings of fact recorded by the courts below do not warrant intervention in regular second appeal wherein only substantial questions of law can be raised for consideration.
I have heard counsel for the parties and perused the case file. The following substantial questions of law arise for consideration:-
1 Whether the plaintiffs have been able to establish identity of the land in dispute to connect it with the allotment made to Sh.
Tahlia Ram son of Ram Chander in the year 1955 vide Sanad dated 24.3.1955?
2 Whether the judgment and decree for permanent injunction in regard to land stated to be in possession of the plaintiffs- respondents is perverse, thus, liable to be set aside? The plaintiffs, admittedly staked their claim to the suit property on the premise that it was allotted to Tahlia Ram by the Rehabilitation Department and succeeded by them in the manner detailed in para 2 of the plaint. The appellants have not raised any issue in regard to allotment made to Tahlia Ram and the plaintiffs being successors-in-interest of said Tahlia Ram. As per the settled proposition of law, the plaintiff has to stand on his own legs to be successful in the litigation and he cannot take advantage of R.S.A.No.712 of 2013 -7- weakness of the defendants. In these circumstances, it was obligatory for the plaintiffs to firstly describe the suit property with all details sufficient to identify the same and thereafter to establish that the suit property is the same property which was allotted in favour of Tahlia Ram.
The plaintiffs have placed on record Sanad in regard to allotment made in favour of Tahlia Ram vide notification of the Govt.
30-8-1955 of India in the Ministry of Rehabilitation dated 24-3-1955. Though this document does not appear to be exhibited during evidence, however, the plaintiffs have exhibited allotment order (Sanad) Ex. PW15/M. As per this document, House No. 51 Ahata No. 32 was allotted to Tahlia Ram and the area of house in column No. 4 is described as 04 biswas and safed tukri as 05 biswas. This document does not contain any site plan giving the description i.e. dimensions and boundaries of 05 biswas of land allotted to Tahlia Ram to connect land in dispute reflected in site plan Ex. PW1/A with the site allotted. As has been argued by counsel for the appellants, it is none of the plea of the plaintiffs that Ahata No. 32 from which one house and 05 biswas of land was allotted to Tahlia Ram consisted of a particular area. Conversely, Gulshan Rai, Kanoongo, Sale Officer Tehsildar PW8 has stated in his examination-in-chief that as per record of his office, area of plot No. 32 is 6823 square feet which is much more than 05 biswas of land. No other evidence was adduced by the plaintiffs-respondents in order to connect the suit property with the land allotted to Tahlia Ram.
Much stress has been laid by counsel for the respondents and so also the courts below on the pleadings of defendant Fakira in the earlier suit filed by Amir Chand and others against him for grant of permanent R.S.A.No.712 of 2013 -8- injunction which was later amended to raise the plea that during pendency of suit, the defendant has encroached upon the suit land. In the said suit, in para No. 1, the plaintiffs claimed themselves to be owner in possession of plot bearing Ahata No. 32 Hadbast No. 108 measuring 05 biswas situated in revenue estate of village Sihi. No site plan was appended with the suit nor any description of said 05 biswas of land was given in the head note of the plaint, may be, the plaintiffs were not sure of the dimensions and boundaries of said 05 biswas allotted to Tahlia Ram. I find fortification to my observations from the plea of the plaintiffs in para No. 5 of the plaint in the present case.
In response to para No.1, Fakira denied the plaintiffs to be owners in possession of plot bearing Ahata No. 32 Hadbast No. 108 measuring 05 biswas. However, it was pleaded that the defendant is in possession of the said land for more than 30 years and he has become owner in possession of the suit land by adverse possession. As Fakira never admitted the plaintiffs to be the owners in possession of the suit land, there is no question of his having admitted that the suit land belongs to Amir Chand and others being successors of Tahlia Ram. In para 2 of the written statement, he has denied his knowledge about the said allotment in favour of Tahlia Ram. Under these circumstances, it is difficult to conclude that Fakira in view of his pleadings in the earlier suit has, in any manner, accepted that he is in possession of 05 biswas of land, ownership of the plaintiffs. The question of Fakira admitting ownership of the plaintiffs of the suit land otherwise does not arise in view of averments of the plaintiffs in the instant suit wherein in para 05 of the plaint, they have pleaded as R.S.A.No.712 of 2013 -9- follows:-
"That plaintiff No. 2 has come to know about the exact dimension of the said land which is fully described in para no. 1 of the plaint on 2.1.1999 from some reliable sources and prior to it, the plaintiffs have no knowledge about the exact dimensions of the said land."
The plaintiffs in the aforesaid para have stated that plaintiff No. 2 has come to know about the exact dimension of the said land which is fully described in para 01 of the plaint on 2.1.1999 from some reliable sources and prior thereto, the plaintiffs had no knowledge about the exact dimension of the said land. Perusal of para 01 of the plaint shows that no dimensions of the suit land have been described in para 01 of the plaint though, of course, para no. 1 makes reference to the site plan attached with the plaint. Perusal of the site plan Ex. PW1/A would reveal that the dimensions of the area covered under construction has been given but no such measurement of the area stated to be in possession of the plaintiffs has been described to prove clearly that the total area reflected in the site plan comes to 05 biswas (750 sq. yards). The judgments of the courts below are based on misplaced reliance upon the plea of Fakira in earlier litigation without appreciating that at the time of filing of earlier suit, the plaintiffs were not aware of dimensions and boundaries of 05 biswas of land claimed by them and, therefore, there was no occasion for the defendant to admit that fact particularly in the circumstances that Fakira denied the plea of allotment in favour of Tahlia Ram. As a matter of fact, there is no evidence on record to establish identity of the land in dispute and connect the same R.S.A.No.712 of 2013 -10- with the allotment made in favour of Tahlia Ram.
The courts below have also passed a decree of permanent injunction in favour of the plaintiffs. Amir Chand, predecessor-in-interest of plaintiff No. 2 and Smt. Ganeshi Devi earlier filed suit for permanent injunction against defendant Fakira alone. In the said suit, plea of the plaintiffs is that the defendant is trying to encroach upon the property and raise construction thereon. The suit was instituted in the year 1987 and was eventually dismissed for want of prosecution in the year 1992. During pendency of the suit, an application was filed to raise the plea that after grant of ex parte stay, the defendant forcibly and illegally made some construction over the suit land to which he has no right. The plaintiffs also initiated proceedings under Order 39 Rule 2A of the Code of Civil Procedure for violation of injunction order. After dismissal of the earlier suit in 1992, the present litigation was started in January 1999, after about 07 years. There is no evidence on record to establish the plea of the plaintiffs that Fakira encroached upon the suit property during pendency of the earlier litigation or raised construction thereon as sought to be projected by the plaintiffs in the earlier litigation. The fact that the plaintiffs, after dismissal of the earlier suit, remained silent for a period of about 07 years falsifies and belies their plea that defendant Fakira had extended any threat to encroach upon the suit land. Not only this, as the plaintiffs have failed to prove that defendants No. 1 to 3 have encroached upon different parcels of the suit land at any time subsequent to the filing of the earlier suit which was instituted only against Fakira, it creates a serious doubt in their contention that they approached the court for grant of injunction with clean R.S.A.No.712 of 2013 -11- hands. As has been noticed hereinbefore, the plaintiffs have failed to prove that the suit land is the land which was allotted to Tahlia Ram. The plaintiffs have sought relief of injunction in regard to the area which is lying vacant. As per settled position of law, in the case of a vacant plot, possession follows ownership. Since the plaintiffs have failed to prove their ownership of any part of the suit land, the judgment passed by the courts holding the contesting respondents entitle to decree of permanent injunction are perverse, therefore, cannot be allowed to sustain.
In view of what has been discussed hereinabove, the appeal is allowed, the judgments and decrees passed by the courts below are set aside leaving the parties to bear their own costs. Decree sheet be drawn up accordingly.
(REKHA MITTAL) JUDGE 28.8.2014 PARAMJIT