Punjab-Haryana High Court
Baddal And Others vs Chet Ram And Others on 15 January, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA No. 2988 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 2988 of 1986
Date of Decision: January 15, 2014
Baddal and others
... Appellants
Versus
Chet Ram 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. Vivek Singla, Advocate,
for the appellants.
Mr. C.B. Goel, Advocate,
for the respondents.
Paramjeet Singh, J.
Instant regular second appeal arises out of a suit for permanent injunction filed by the appellants-plaintiffs against the respondents-defendants which was decreed by the Court of first instance and appeal preferred by the respondents-defendants has been accepted by the learned lower appellate Court and judgment and decree of the Court of first instance has been set aside and the suit of the appellants-plaintiffs has been dismissed.
Kumar Virender 2014.02.11 10:30 I attest to the accuracy and integrity of this document RSA No. 2988 of 1986 2
The detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal, as alleged in the plaint, are that the parties are Kahars by caste and predecessors of the plaintiffs were settled in Village Bajghera and occupied two plots bearing Ahata No. 180 and 181 as given in Shiajra Khasra Paimaish prepared in the year 1877. In the plot No. 180, forefathers of the plaintiffs constructed their houses while plot no. 181 was reserved for use as outer courtyard for common purposes. It is further alleged that the fore-fathers of the plaintiffs constructed a Chopal, shown by letters ABCD in the site plan for common use of the plaintiffs and their family members and has been in use as such since then. However, the defendants have threatened to take forcible possession of the Chopal and the court yard.
Upon notice, the defendants appeared and filed written statement admitting the parties to be Kahars. Rest of the averments made in the plaint are denied. It was alleged that the land comprised in Ahata No. 180 and 181, was owned by Shamilat Patti Parsa and Ghasi previously and the Kahar Community, consisting of the predecessors-in-interest of both the parties, occupied the site for their residential purposes and with the passage of time, the said property was occupied by the members of Kahars community. It was further alleged that the defendants were owners in possession of the Kotha and the open land and they have been using the same for tethering their cattle and other purposes subservient thereto. In the preliminary objections, it was stated that the suit was not maintainable Kumar Virender 2014.02.11 10:30 I attest to the accuracy and integrity of this document RSA No. 2988 of 1986 3 in its present form and was time-barred.
On the basis of pleadings of the parties, the Court of first instance framed the following issues:-
"1. Whether disputed plot shown with letters EFGH, in the site plan, is common plot of the plaintiffs and is being used for their common purposes? OPP
2. Whether the disputed plot forms a part of Ahata Nos. 180 and 181 of Shijra Khasra Paimaish of Village Bajghera? OPP
3. Whether the suit is not maintainable in the present form?OPD
4. Whether the plaintiffs are estopped from filing this suit by their act, conduct and acquiescence? OPD
5. Relief."
The Court of first instance after perusal of the evidence vide judgment and decree dated 30.05.1984 recorded issue-wise findings and decreed the suit to the effect that the defendants are perpetually restrained from taking forcible possession of any part of the Chopal shown in red colour and by letters ABCD in the site plan. Against that, the respondents- defendants preferred an appeal, which has been allowed and the suit of the plaintiffs has been dismissed by the learned lower appellate Court vide judgment and decree dated 21.07.1986. Hence, this second appeal.
At the time of admission, no substantial question of law was framed. However, during the pendency of the present appeal, following substantial questions of law have been placed on record:-
"I. Whether in the absence of legal or satisfactory evidence, it could be proved that property was reserved for the common Kumar Virender 2014.02.11 10:30 I attest to the accuracy and integrity of this document RSA No. 2988 of 1986 4 purpose?
II. Whether findings of the courts below are against the factual matrix of the case?
III. Whether the impugned judgments and decrees are patently illegal, ultra-vires, void and without jurisdiction and are liable to be set aside?
IV. Whether grave and manifest injustice has been caused to the appellants in the matter."
I have heard learned counsel for the parties and perused the record.
Learned counsel for the appellants vehemently contended that admittedly both the parties are Kahar by caste and are non proprietors of the village. Ahata Nos. 180 and 181 were given by the residents of the village to their fore-fathers for settlement and for construction of residential houses. The forefathers left the common space for use of chopal for functions of marriages etc. which falls within the area of Ahata No. 181 and specific reference has been made to the site plan indicating the disputed land as ABCD which is shown in red colour. Learned counsel for the appellants further vehemently contended that the learned lower appellate Court has wrongly set aside the findings recorded by the learned trial Court and the same are not sustainable in the eyes of law. Ahata No. 181 has been recorded as the ownership of shamilat patti of parsa and ghasi and in the revenue record it is mentioned as outer courtyard of Kahars. Nobody has been specifically mentioned to be in possession of the property. The documentary evidence clearly proves the case of the Kumar Virender 2014.02.11 10:30 I attest to the accuracy and integrity of this document RSA No. 2988 of 1986 5 plaintiffs.
On the other hand, learned counsel for the respondents vehemently contended that findings of fact have been recorded by the learned lower appellate Court after appreciating the evidence on record specifically with regard to the local commissioner's report and also contended that the forefathers of the respondents settled in the village and houses have been constructed in the area which are of Kahars. Learned counsel for the respondents further vehemently contended that as per the pleadings, both plots i.e. Ahata Nos.180 and 181 were for the use of Kahar community, construction was carried out long back and and parties have been in possession of the same according to their actual possession at the spot and also made reference to the report of the local commissioner.
I have considered the rival contentions of the learned counsel for the parties and perused the record.
Admittedly, both the parties belong to Kahar community and their forefathers were given plot Nos. 180 and 181 and they have constructed the kothas along with courtyards in that very place. Learned lower appellate Court has recorded a finding that the plaintiff's witnesses have admitted in cross-examination that there is double-storey house constructed by Chet Ram defendant. There are also khors and chaff cutting machine. The learned lower appellate Court has also recorded a finding that the construction by the defendants is in their own right and is subsisting. It is plaintiffs' own case that the double storeyed house of Chet Ram-defendant exists on a plot, shown by letters EFGH which is a part of Kumar Virender 2014.02.11 10:30 I attest to the accuracy and integrity of this document RSA No. 2988 of 1986 6 Ahata No. 181. In view of this, finding on Issue No.1 has rightly been set aside by the lower appellate Court. The pure findings of fact have been recorded by the learned lower appellate Court after appreciation of evidence.
I do not find any illegality or perversity in the impugned judgment and decree. Otherwise also, the plaintiffs have no right to file such suit since the property in question has been described in the revenue record as ownership of Shamilat patti of parsa and ghasi.
No other point has been argued.
I, accordingly, dismiss the instant regular second appeal as no question of law, much-less substantial question of law, as claimed, arises in this second appeal.
No order as to costs.
January 15, 2014 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2014.02.11 10:30
I attest to the accuracy and
integrity of this document