Punjab-Haryana High Court
Parshotam Dass vs Union Of India And Another on 17 November, 2010
Regular Second Appeal No. 4022 of 2010 {1}
In the High Court of Punjab and Haryana at Chandigarh
Regular Second Appeal No. 4022 of 2010(O&M)
Date of Decision: November 17, 2010
Parshotam Dass
---Appellant
versus
Union of India and another
---Respondents
Coram: HONBLE MR. JUSTICE GURDEV SINGH
***
Present: Ms. Shashi Ghuman, Advocate,
for the appellant
***
GURDEV SINGH, J.
C.M.No.11937-C of 2010 Heard.
For the reasons stated in the application, the period for making up the deficiency in the court fee is extended by 15 days. C.M.No.11939-C of 2010 Heard.
For the reasons disclosed in the application, which is supported by an affidavit, delay in re-filing the appeal is condoned.
Application stands disposed of accordingly.
Regular Second Appeal No. 4022 of 2010 {2}
C.M.No.11938-C of 2010
Heard.
For the reasons disclosed in the application, which is supported by an affidavit, delay in filing the appeal is condoned.
Application stands disposed of accordingly.
C.M.Nos.11940-41 C of 2010 Heard.
Allowed subject to all just exceptions.
C.M.No.11942-C of 2010 R.S.A.No.4022 of 2010 The appellant -plaintiff, Parshotam Dass, filed suit for permanent injunction restraining the respondents-defendants from interfering in his possession and dispossessing him from the property in dispute bearing Khasra No. 1918, situated in village Batala Garbi. Tehsil Batala, fully detailed in the plaint itself. That suit was dismissed by Civil Judge(Junior Division) Batala, vide judgment and decree dated 18.4.2009. He preferred first appeal against that judgment and decree which was dismissed by Additional District Judge (Ad hoc), Gurdaspur, vide judgment and decree dated 25.3.2010. The present appeal has been preferred by him against those judgments and decrees.
The plaintiff pleaded in his plaint that the suit land is under the ownership of Shamlat Taraf Kutub Din Hasab Rasad Khewat and as such belongs to proprietors of the village. He is in continuous possession thereof from the last 55 years. Previously, the Municipal committee tried to dispossess him from this land and he filed a suit, in which statement was made by the Committee that it will not interfere in his possession Regular Second Appeal No. 4022 of 2010 {3} except in due course of law. He also filed similar suit bearing No.49 of 25.2.2002 against the defendants in the Civil Court at Batala, in which statement was made by them on 6.6.2003 that they would dispossess him under the provision of The Ancient Monuments and Archaeological Sites and Remains Act, 1958(hereinafter referred to as 'the Act') and the Rules framed there under. In view of their statement, he had withdrawn the suit and the Court had directed the parties to remain bound by their statements. Now, the defendants are again threatening to dispossess him from the suit land.
The suit was contested by the defendants. In their written statement they admitted that the plaintiff had filed a suit against them previously also, which was disposed of in view of the statement made by them. They denied the other contentions of the plaintiff and pleaded that they issued notice under Sections 19(1) and 30 of the Act and in stead of vacating the building in pursuance of that notice, the plaintiff filed the present suit. As per the provisions of the Act, the competent authority has the power to issue a notice to ask the person, who violates the provisions of the Act and fails to remove the encroachment, to get the same removed by force. The suit land has been illegally encroached upon by the plaintiff and he is liable to be evicted therefrom under the provisions of the Act. Previously, the plaintiff filed suit against Sant Lal and others in which defendant No. 1 was impleaded as defendant No. 5 and the said suit was withdrawn without seeking any permission to file a fresh suit. Therefore, the present suit is barred under Order VII Rule 1(8) and Order XXIII Rule 1(3) CPC. They also pleaded that Baradari Anarkali, Batala, was declared as protected monument vide notification dated 19.4.1933, issued by the Local Self Regular Second Appeal No. 4022 of 2010 {4} Government Department and that monument was declared as protected monument under the Ancient Monuments Preservation Act, 1904. Now, the Baradari Anarkali is being governed by the provisions of the Act and it is their duty to protect all such like monuments. The Central Government had referred the case to the Deputy Commissioner for the transfer of this land in favour of Archaeological Survey of India, vide letter dated 18.8.1987. However, the case was further referred by the Deputy Commissioner on the plea that the matter is to be decided by the Punjab Government as the ownership thereof was recorded in the name of the Provincial Government. The plaintiff cannot claim any right in the land which is connected with the monuments of national importance. They have been allowed by the Deputy Commissioner to start with the fencing of this area.
In the replication to the written statement, the plaintiff denied all the contentions raised therein and reiterated his averments made in the plaint.
On the pleadings of the parties following issues were framed by the trial court:-
1. Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP
2. Whether no cause of action accrued to the plaintiffs in the process of dispossession after the show cause notice as per the provisions of AMASR Act & AMASAR Rules, 1959? OPD
3. Whether the plaintiff is liable to pay the damages for illegal possession over the suit property as alleged in the Regular Second Appeal No. 4022 of 2010 {5} counter claim? OPD
4. Relief.
On the basis of the evidence produced by the parties and after hearing learned counsel for both the sides, learned trial court recorded the findings on all these issues and dismissed the suit of the plaintiff. The first appeal preferred by the plaintiff was dismissed as aforesaid.
I have heard counsel for the appellant-plaintiff. After hearing the submissions made by counsel for the plaintiff, this Court has come to the conclusion that no substantial question of law arises in the present appeal. Concurrent findings of fact were recorded by both the courts below and it is not the case of the counsel for the plaintiff that there is any misreading of the evidence by the courts below while recording that findings or that those findings are perverse. In the previous suit, filed for the same relief, the defendants made a statement that they would eject the plaintiff from the suit land in accordance with law and thereafter notice was served by them upon the plaintiff. That itself shows that the possession is being taken from the plaintiff in due course of law. Even otherwise, the suit itself was not competent and remedy of the plaintiff was, if any, to file an application for contempt, if the defendants have not complied with the statement made by them before the trial court.
In view of the above discussion, this appeal is hereby dismissed.
(GURDEV SINGH) JUDGE November 17, 2010 PARAMJIT