Punjab-Haryana High Court
Kulwant Singh vs Gian Singh And Others on 14 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
RSA No.2878 of 2012
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2878 of 2012 (O&M)
Date of decision: 14.01.2014
Kulwant Singh
....Appellant
Versus
Gian Singh and others
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. Varun Jain, Advocate, for
Mr. Arihant Jain, Advocate, for the appellant.
*****
PARAMJEET SINGH, J.
CM No.7733-C of 2012 For the reasons stated in the application, CM is allowed. Delay of 49 days in refiling the appeal is condoned. RSA No.2878 of 2012
This regular second appeal arises out of the suit for permanent injunction filed by respondent No.1/plaintiff against appellant/defendant No.1 and respondents/defendants No.2 and 3, restraining the defendants from interfering in the peaceful possession of plaintiff in the suit land. The Court of first instance decreed the suit vide judgment and decree dated 23.09.2010. Aggrieved against the judgment and decree passed by the Court of first instance, appellant and respondents No.2 and 3 Singh Ravinder 2014.02.11 12:42 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.2878 of 2012 preferred an appeal before the lower appellate Court, which has been dismissed vide judgment and decree dated 23.12.2011 and the judgment and decree passed by the Court of first instance has been affirmed.
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced in detail. However, the facts relevant for disposal of this second appeal, as per plaint, are to the effect that the suit land, fully detailed in the headnote of the plaint, is exclusively owned and possessed by the plaintiff. Earlier the suit land was in possession of appellant/defendant No.1 but he never paid share of the produce to the plaintiff. Thereafter, plaintiff filed a suit for ejectment and share of produce before the revenue authorities, which was decreed. Execution was filed by the plaintiff and in execution proceedings, possession was delivered to the plaintiff on 25.09.2007 and since then the plaintiff is in exclusive possession of the land in question. Appellant/defendant No.1 had also filed a separate suit for permanent injunction titled as 'Kulwant Singh vs. Gian Singh etc.' which was dismissed in default. Now, appellant/defendant has no right, title or concern with the suit land but he intended to forcibly dispossess the plaintiff from the suit land.
Upon notice, defendants appeared and filed written statement taking preliminary objections that plaintiff has no locus standi to file the present suit, plaintiff has no cause of action, plaintiff is estopped by his own act and conduct from filing the present suit, he has not come to the Court with clean hands and material facts have been suppressed from the Singh Ravinder 2014.02.11 12:42 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.2878 of 2012 Court. It was further pleaded that plaintiff is not owner in possession of the suit land. Wheat crop was sown by defendant No.1, he was in possession of the suit land. It is also admitted that plaintiff filed a suit for ejectment and recovery of share in produce but the same was decreed qua share of produce only and no decree of possession was passed by A.C. Ist Grade. Plaintiff filed execution and in execution there was no such prayer for obtaining possession.
No replication was filed to the written statement. Court of first instance, on perusal of pleadings of the parties, framed following issues: -
"1. Whether the plaintiff is stopped by his act and conduct from filing the present suit? OPD
2. Whether the plaintiff has not come to the Court with clean hands? OPD
3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP
4. Relief."
The Court of first instance recorded issuewise findings and decreed the suit filed by respondent No.1/plaintiff. Against the judgment and decree of the Court of first instance, appeal filed by appellant and respondents No.2 and 3 has been dismissed. Hence this regular second appeal.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the appellants contended that following Singh Ravinder 2014.02.11 12:42 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.2878 of 2012 substantial questions of law, as formulated in grounds of appeal, arise for consideration: -
"1. Whether the impugned judgments and decree passed by the Courts below mis-interpreting the documentary evidence produced on record, are sustainable in the eyes of law?
2. Whether findings and observations of the Courts below are perverse and are not sustainable in the eyes of law?
3. Whether the plaintiff who is not in possession of the land in dispute is entitled to seek permanent injunction restraining the defendants from interfering in possession?
4. Whether the respondent/plaintiff can seek possession from the appellant on the basis of judgment and decree dated 01.03.2006 Ex.P-4 and P-5?"
Only material issue is issue No.3. The Court of first instance recorded a finding that earlier the plaintiff had filed a suit against defendant No.1, who was in possession of the suit land and was not paying the share of produce. Sub Divisional Magistrate, Sultanpur Lodhi, passed the ejectment order and in execution of the same, possession was delivered to the plaintiff. Admittedly, the ejectment order is on record as Ex.P4. The Court of first instance has also recorded a finding that as per the ejectment order, defendant No.1 was also directed to pay 1/3rd share of the produce to plaintiff. The suit of the plaintiff has been decreed by the revenue Court and it is nowhere mentioned that ejectment is declined. Rather execution was filed, Singh Ravinder 2014.02.11 12:42 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.2878 of 2012 warrant of possession was issued and possession was delivered to the plaintiff. Entry with regard to change of possession has also been made in the khasra girdawari for the year 2009-10.
In view of the finding that possession has been delivered in pursuance of the decree passed by revenue Court and the fact that the said finding has been affirmed by the lower appellate Court, I do not find any illegality or perversity in the judgments and decrees passed by Courts below. The concurrent findings of fact call for no interference in second appeal.
In view of above, no question of law, muchless substantial question of law, as alleged, arises in the present appeal.
Dismissed.
(Paramjeet Singh) Judge January 14, 2014 R.S. Singh Ravinder 2014.02.11 12:42 I attest to the accuracy and integrity of this document Chandigarh