Punjab-Haryana High Court
Mohinder Singh vs Pala Singh And Others --Respondents on 2 December, 2009
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
RSA 3945 of 2009 1
In the High Court for the States of Punjab and Haryana at Chandigarh.
Decided on December 02,2009.
Mohinder Singh -- Appellant
vs.
Pala Singh and others --Respondents.
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Sarwan Singh,Sr.Advocate, with Mr.N.S.Rapri,Advocate,for the appellant Rakesh Kumar Jain, J: (Oral) The plaintiff has come up in second appeal having been unsuccessful before both the Courts below in a suit for permanent injunction wherein the defendants were sought to be restrained not to interfere in his actual physical possession and ownership over the property bearing Khewat No. 52 measuring 2 kanals (Chahi) situated in village Majri, Tehsil and District Ambala.
The plaintiff's case is that he owned agricultural land in the village having share in shamlat and abadi land and is in possession of the suit land since the time of his forefathers which is situated in the abadi of the village measuring 2 kanals bearing Khewat No.52, having a tubewell, one room, drain for well water, 60 grown up kikar trees and place for tethering cattles. It is alleged that the defendants have formed a group in the village, out of which defendant Nos. 1 and 2 had previously filed a suit RSA 3945 of 2009 2 against the plaintiff which was withdrawn. Then, again they filed another suit which is pending before the Court below and due to enmity, the plaintiff and his family members were implicated in a false case and on 12.10.1997, the defendants came to the land in question and threatened to dispossess him forcibly and hence, the suit had to be filed.
Defendant Nos.1 to 6 contested the suit by filing their written statement alleging that the plaintiff is guilty of suppressing facts that his suit filed under Section 13 (B) of the Punjab Village Common Lands Act, 1961 (for short, 'the Act') against the Gram Panchayat regarding the suit land was dismissed on 23.4.1984. The plaintiff is neither owner nor in possession of the suit property.
Defendant No.7 filed separate written statement alleging that the earlier suit filed by the plaintiff against the Gram Panchayat under Section 13-B of the Act, was dismissed, which fact has been concealed and suppressed by the plaintiff.
On the pleadings of the parties, following issues were framed:-
1. Whether the plaintiff is owner in possession of the suit property ?OPP.
2. Whether the plaintiff is entitled to a decree of permanent injunction against the defendants on the grounds taken in the plaint ? OPP
3. Whether the suit of the plaintiff is not maintainable ? OPD
4. Whether the plaintiff has not come in the court with clean hands ? OPD
5. Whether the suit of the plaintiff is bad for misjoinder and non RSA 3945 of 2009 3 joinder of necessary parties ? OPD
6. Whether the plaintiff has no cause of action to file the present suit?OPD
7. Whether the suit of the plaintiff is hit by provision under order 2 rule 2 CPC ?OPD
8. Relief ?
In order to substantiate his case, the plaintiff had examined Moti Ram as PW-1, himself as PW-2, whereas the defendants examined Pritam Singh as DW-1.
The trial Court dismissed the suit, which led the plaintiff to file an appeal before the first Appellate Court, which too has been dismissed.
Still aggrieved, the plaintiff filed the present appeal in which only question of law that has been raised is that "whether the plaintiff/appellant, who is in a settled possession is entitled to maintain a suit for injunction even against a true owner".
Learned counsel for the appellant has submitted that he is in possession of 2 kanals of land bearing Khewat No.52 and refers to khasra girdawari for the years 2003-2004 as Ex P-2. He has also relied upon a decision of the Supreme Court in the case of Rame Gowda (D) by LRs. Vs. Mr. Varadappa Naidu (D) by LRs. And anr. 2004 (1) RCR (Civil) 519, to contend that a person in settled possession can seek injunction against true owner. Similar argument was raised before the Courts below a and a finding of fact has been recorded which is as under:-
"Appellant has claimed that he is owner in possession of the property shown in letters 'A B C D' in the site plan. If Site Plan is examined, then it becomes clear that he is claiming RSA 3945 of 2009 4 ownership and possession of land in addition to Khasra No.52 in respect of which he has placed revenue record. But there is no record in respect of this additional land. So, he cannot be believed in this regard.
This land is situated in 'Abadi Deh'. It is, therefore, not assessable to revenue. So, no reliance can be placed upon these documents. Electricity bill does not prove that this tubewell is situated on the disputed land. It is correct that a person, who is in long possession is entitled to relief of injunction, but not a person again whom an order has been passed thereby disbelieving his plea of possession. So, appellant is not entitled to injunction.
It is claimed that he is owner in possession of the land since the time of his forefathers. But he has not placed on file and record for the period prior to 1991. Moreover, these jamabandis show him 'Gair Marusi', means tenant at will. But there is no mention of any rent etc. Tenancy can only be created between two parties. But he failed to place on file any agreement between him and Gram Panchayat as admittedly land is situated in 'Abadi' and vests in Gram Panchayat. Moreover, it is not case of plaintiff that he had obtained his land on lease from Gram Panchayat. In such a situation, it has to be held that these entries are without any consideration and basis. So he cannot be granted any injunction that too against true owner i.e. Gram Panchayat".
Insofar the decision in the case of Rame Gowda's RSA 3945 of 2009 5 case (Supra) is concerned, the same has been thoroughly discussed by this Court in the case of Sukhwant Singh Vs. Divisional Forest Officer and another (RSA No.3800 of 2004 decided on 2.4.2009) in which it has been held as under:-
"In Rame Gowda (D) LRs's case (supra), the plaintiff filed a suit alleging his title as also his possession over the disputed piece of land. The trial Court found the plaintiff as having failed in proving his title. Nevertheless he was found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial Court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession protecting the established possession and restraining the attempted interference therewith. On the appeal of the defendant, the Hon'ble Supreme Court held that the trial Court and the High Court have rightly decided the suit as it was still open to the defendant-appellant to file a suit based on his title against the plaintiff and evict the latter and the former establishing his better right to possess the property".
Thus, in Rame Gowda(D) LRs's case (supra), the title of the parties was in dispute and the Hon'ble Apex Court reiterated its earlier view observing as under:-
"In Fakirbhai Bhagwandas v. Maganlal Haribhai RSA 3945 of 2009 6 AIR 1951 Bombay 380, a Division Bench spoke through Bhagwati, J.(as his Lordship then was) and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken. The High Court has kept the question of title open. Each of the two contending parties would be at liberty to plead all relevant facts directed towards establishing their titles, as respectively claimed, and proving the same in duly constituted legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties.
From the above discussion , it is also clear that there is no conflict with regard to ratio of law as settled in Rame Gowda(D) LRs's case(supra) and the other judgments supporting the view taken in aforesaid case and the view taken in Premji Ratansey Shah and others's case (supra) and other judgments supporting the same view.
In the cases in hand, there is no dispute with regard to the title of the defendants in the suit property. Therefore, in view of the above discussion only one conclusion can be drawn that an injunction cannot be granted in favour of the plaintiffs who are trespassers and against the defendants who are the true owners of the suit land".
Since in the present case, the finding of fact has been recorded RSA 3945 of 2009 7 by the Courts below that true owner of the land in question is the Gram Panchayat as the jamabandi shows the appellant/plaintiff to be 'gair marusi' (tenant at will). Therefore, the aforesaid judgment in the case of Rame Gowda's case (Supra) is of no help to the plaintiff/appellant.
Moreover, admittedly, the appellant has come to this Court on the plea of being owner in possession and has failed to prove his ownership, therefore, in view of Division Bench judgment of this Court in Sohan Singh and another Vs. Jhaman (deceased) now rep by his LRs. 1986 P.L.J.168, wherein it has been held that in case the plaintiff comes to the Court on the basis of his title to the suit property (other than his possession thereto) and he fails to prove the same at the trial, then relief of permanent injunction on the basis of possession alone will have to be ordinarily refused unless there was a further specific finding by the Court that he was being forcibly dispossessed by the defendants.
No other point has been raised by the learned counsel for the appellant nor any substantial question of law has been raised.
After taking into consideration totality of circumstances discussed herein above, I do not find any merit in the present appeal nor I have any reason to tinker with the finding of fact recorded by the Courts below. Hence, this appeal is hereby dismissed in limine,however, with no order as to costs.
December 02,2009 (Rakesh Kumar Jain) RR Judge