Punjab-Haryana High Court
Mohinder Partap Soni vs Madan Lal And Anr. on 13 September, 1995
Equivalent citations: (1996)113PLR156
JUDGMENT G.C. Garg, J.
1. Plaintiff-appellant filed a suit for permanent injunction restraining the defendants from interfering in his possession or dispossessing him from the property in dispute except in due course of law. He claimed to be in possession of 1300 Sq. yards of land for the last more than 16 years. Trial Court by judgment and decree dated 26.9.1988 dismissed the suit. While dismissing the suit, it recorded a finding that the plaintiff failed to prove that he was in possession of the suit property on the date of filing of the suit and he was dispossessed during the pendency of the suit and that defendant No. 2 was proved to be in possession of the suit property i. e. of 900 Sq. yards. Appeal against the judgment and decree of the trial Court was dismissed by learned Additional District Judge on 1.5.1995. Learned Additional District Judge in para II of its judgment came to the conclusion that if at all a piece of land measuring 900 Sq. yards was in possession of the plaintiff, then in that agreement he would have got recorded that he was in possession of that adjoining plot also in addition to his possession over the plot measuring 400 Sq. yards intended to be purchased by him. The appellate Court further recorded that the plaintiff entered into possession of 400 Sq. yards after executing an agreement in his favour and his possession over that portion was even admitted by the contesting defendant. Despite the above finding suit of the plaintiff was dismissed in toto by the Courts below, Plaintiff aggrieved by the judgment and decree of the Courts below has filed this appeal.
2. At the motion stage, learned counsel for the appellant submitted that the Courts, below after coming to the conclusion that the plaintiff was in possession of 400 Sq. yards, his suit could not have been dismissed at least with regard to that portion.
3. On notice of motion being issued, defendant No. 2 has put in appearance.
4. Learned counsel for the appellant vehemently argued that the plaintiff was proved to be in possession of the entire suit property i.e. 1300 Sq. yards. However, on a consideration of the matter, I am of the opinion that no exception can be taken to the concurrent finding recorded by the Courts below. Finding has been arrived at after considering all the relevant evidence and the plaintiff has failed to prove that he was in possession of 900 sq. yards out of the suit property. However, he is proved to be in possession of 400 Sq. yards of the suit property and it has been so held by the two Courts below. Learned counsel for the respondent No. 2 could not dispute and rather admitted that the appellant is in possession of the property to the extent of 400 Sq. yards. In the situation, suit of the plaintiff could not have been dismissed in its entirety. As already noticed above, the suit was with regard to a piece of land measuring 1300 Sq. yards. Once it was found that the plaintiff was in possession of 400 Sq. yards of land, his suit qua that portion for permanent injunction restraining the defendants from interfering or dispossession from that portion of the property except in due course of law ought to have been decreed, yet his suit has been dismissed in its entirety. Faced with the above situation, learned counsel for the respondent submitted that he has no objection if the decree of the Courts below is clarified to that extent.
5. The plaintiff had filed a suit for permanent injunction obviously on the basis of possession. He has been found to be in possession of 400 Sq. yards of land. Thus, his suit deserves to be decreed to that extent. No reason has been given for dismissing the suit of the plaintiff qua that portion of land. In the circumstances, I partly allow this appeal and modify the judgment and decree of the Courts below. Suit of the plaintiff qua 900 Sq. yards of land in respect of which he was found to be out of possession shall stand dismissed whereas suit for permanent injunction qua 400 Sq. yards of land in respect of which he was found to be in possession, shall stand decreed. No order as to costs.