Punjab-Haryana High Court
Swaran Singh @ Sarvan Singh vs Harjinder Kaur And Another on 24 November, 2009
Author: Sabina
Bench: Sabina
R.S.A.No. 4112 of 2007 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 4112 of 2007 (O&M)
Date of decision: 24.12.2009
Swaran Singh @ Sarvan Singh
......Appellant
Versus
Harjinder Kaur and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Rakesh Gupta, Advocate,
for the appellant.
Mr.Ashish Aggarwal, Advocate,
for the respondents.
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SABINA, J.
Plaintiff-appellant filed a suit for mandatory injunction and permanent injunction, which was partly decreed by the Civil Judge (Jr.Divn.), Karnal vide judgment and decree dated 26.8.2006. However, with regard to the relief of mandatory injunction the suit of the plaintiff was dismissed. In appeal filed by the plaintiff, the said judgment and decree were upheld by the Additional District Judge, Karnal vide judgment and decree dated 29.9.2007. Hence, the present appeal.
R.S.A.No. 4112 of 2007 (O&M) 2
Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:-
"2. In brief the plaintiff Swaran Singh brought a civil suit for mandatory injunction and permanent injunction directing the defendants to remove illegal construction and encroachment raised over the land marked as EFGH shown in red colour in the site plan (attached with the plaint Ex.PW3/A) and further consequential relief of permanent injunction was sought restraining the defendants from raising further construction over ther the suit property.
3. As per assertions of the plaintiff, plaintiff is owner in possession of the land measuring 1 Bigha 4 Biswas marked as ABCD in the site plan Ex. W3/A situated at Kasba Karnal within the municipal limits of Karnal bounded as under:-
North: Land/plot of Mohinder Singh and House of Krishan Lal and Parveen Sharma and others.
South: Plot of defendant NO. 1 Harjinder Kaur
and House of Bahadur Singh etc.
East: Road.
West: Agricultural land of Hari Singh.
The said land measuring 1 bigha 4 biswas
was purchased by the plaintiff vide registered sale deed No. 6075/1 dated 20.2.1984 being 24/205 share of the R.S.A.No. 4112 of 2007 (O&M) 3 land measuring 10 bighas 5 biswas comprised in Khasra No. 7331 and 7340. It is alleged that the plaintiff is in possession of the property since the time of its purchase and the possession of the plaintiff has also been incorporated in the khasra girdawari for the crop of kharif, 1998 and also in the demarcation report dated 10.5.1992. It is alleged that defendant No. 1 Harjinder Kaur along with defendant No.2 Gurmail Singh her husband who is owner of adjoining land towards the southern side taking undue advantage of the absence of plaintiff encroached upon the suit land marked EFGH as shown red in the site plan and also raised construction over the same by filing the plinth thereof. The defendants were further bent upon to raise illegal construction hence the plaintiff has to bring the suit.
4. The defendants resisted the claim of the plaintiff and interalia pleaded taking preliminary objections that the suit filed by the plaintiff against the defendants is not legally maintainable, the plaintiff is neither owner nor in possession of the land alleged. Defendant No. 1 who is absolute owner and actual possession of the land measuring) bigha 7-1/2 biswas i.e. 30' x 113'-0" as shown in green colour in the site plan Ex.DW2/A attached with the written statement in view of the registered sale deed R.S.A.No. 4112 of 2007 (O&M) 4 No.349/1 dated 9.12.1996 having purchased for a valuable consideration of Rs.46500/-. It is alleged that the plaint does not disclose any cause of action; the plaintiff has no locus standi to file and maintain the suit;
the plaintiff is estopped from filing the suit by his own act and conduct as the plaintiff has got no concern whatsoever with the plot measuring 30'-0" x 113'-0" the boundary wall of which has been constructed upto the height of 3-1/2 feet by the defendant after execution of the registered sale deed dated 9.12.1996. At the time of raising the construction of the plot in question nobody including the plaintiff ever raised any objection. It is alleged that the present suit is an abuse of the process of the court. On merits also, the defendants denied the ownership of the plaintiff regarding the land 1 Bigha 4 biswas and claimed themselves to be in possession of the plot measuring 30' x 113'-0". The defendants prayed for the dismissal of the suit."
On the pleadings of the parties, following issues were framed by the trial Court:-
1. Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for on the grounds mentioned in the plaint?OPP
2. Whether the present suit is not maintainable?OPD R.S.A.No. 4112 of 2007 (O&M) 5
3. Whether the plaintiff has no cause of action and locus standi to file the present suit?OPD
4. Whether the civil court has no jurisdiction to try and entertain the present suit?OPD
5. Relief.
After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed.
Both the Courts below have decreed the suit of the plaintiff for permanent injunction by restraining the defendants from encroaching upon the plot comprised in khasra Nos.7331 and 7340. However, the suit of the plaintiff for mandatory injunction was dismissed. In order to establish that the defendants had encroached upon the plot of the plaintiff, learned counsel has placed reliance on the report of the Local Commissioner Ex.PW-1/C. The said report has been rightly rejected by the Courts below as the same had not been prepared in accordance with law. The Local Commissioner had prepared the report without establishing two pucca points in different directions. Rather the Local Commissioner started the demarcation from the poll of electricity, which was erected in Khasra No.7325/1 and 7345/1. The Local Commissioner expressed his ignorance with regard to the area of khasra number in which the electric poles had been erected. The report Ex.PX also fails to advance the case of the plaintiff as the same was not duly proved. Moreover, the said report does not show that the plot of the plaintiff has been encroached upon R.S.A.No. 4112 of 2007 (O&M) 6 by the defendants. The plaintiff had, thus, failed to lead any evidence to the effect that the defendants had encroached upon the land belonging to the plaintiff. In the absence of any evidence in this regard, the Courts below rightly dismissed the suit of the plaintiff for mandatory injunction.
No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed.
(SABINA) JUDGE December 24, 2009 anita