Punjab-Haryana High Court
Chandan (Dead) Through His Lrs. vs Lakhi Ram on 15 May, 2007
Equivalent citations: (2007)4PLR265
JUDGMENT Vinod K. Sharma, J.
1. This Regular Second Appeal arises from the judgments and decrees passed by the learned Courts below vide which the suit for possession filed by the plaintiff-respondent for possession of plot No. 1632 measuring 0 Kanal 9 marlas has been ordered to be decreed. The suit filed by the plaintiff was based on the following facts.
2. The consolidation of holdings is stated to have taken place in village Bapora in the year 1962-63. It was claimed that during consolidation the plaintiff was allotted plot No. 1632, but he was wrongly delivered possession of plot No. 1638 instead of plot No. 1632. The plot allotted to the plaintiff is said to have remained in possession of the defendant. It was further claimed that the plaintiff constructed a boundary wall on plot No. l638 and subsequently the plaintiff came to know that plot No. 163 8 was in fact allotted to defendant. The gram panchayat was called which constituted the members of the Gram Panchayat as well as respectables of the village Bapora and Resolution No. 4 was passed on 6.2.1977, according to which plot No. 1632 was given to the plaintiff and possession of plot No. 1638 was given to the defendant. It was further claimed that plaintiff remained in possession of Plot No. 1632 for a period of four months. Thereafter some of the villagers poisoned the ears of the defendant and got instituted a suit for permanent injunction. In the said suit, trial court held that defendant Chandan was owner in possession of Plot No. 1632. Moreover, it was also observed that since plot No. 1638 was also given to Chandan, defendant during consolidation of holdings, so he was also declared owner of the same.
3. The plaintiff went in appeal against the said judgment and decree of the trial Court in which the learned first Appellate Court reversed the findings of the learned trial Court regarding issue of ownership of plot and the rest two issues were decided in favour of Chandan. In the said suit, it was held that the plaintiff would be at liberty to take possession of plot in dispute in due course of time. The plaintiff claimed that according to the resolution of the Gram Panchayat, he became the owner of Plot No. 1632. Therefore, the possession of the plot be got delivered to him. On the contrary, he has also become owner in possession of the same as he remained in possession of the same from 1962 to 6.2.1977.
4. The suit was contested by the defendant and it was pleaded that the suit is not maintainable and that the suit is barred by the principles of res judicata. He claimed that plot No. 1632 was given to him by Panna Chohan of village Bapora, because defendant is a cobbler and he had been serving the people of Panana Chohan. It was claimed that he got the plot about 16/17 years back and since then he has been holding it as an owner in possession of the same. It was further claimed that he also remained in possession of Plot No. 1638 and the plaintiff was never in possession of that plot which was allotted to the defendant during consolidation. The allegation of compromise or settlement by the Panchayat was also denied.
5. Replication was filed. On the basis of the pleadings of the parties, following issues were framed:
1. Whether the plaintiff is the owner of the suit land? OPP
2. Whether the order of the consolidation authority allotting plot No. 1638, is illegal, null and void, and is liable to be set aside for the reasons given in the plaint? OPP
3. Whether the plaintiff is entitled to the decree for possession of plot No. 1632? OPP
4. Whether the suit is time barred? OPD
5. Whether the suit of the plaintiff is barred by the principle of res judicata as alleged in preliminary objection No. 3 of written statement? OPD
6. Whether the plaintiff is estopped by his acts and conduct to sue? OPD
7. Whether the plaintiff has become the owner of the suit plot No. 1638 by way of adverse possession? OPP
8. Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? OPD
9. Relief.
6.The learned trial Court decided issue No. 1 in favour of the plaintiff by observing that Panna Chohan alone is owner of plot No. 1632. The other proprietors were also owners of this plot. The majority of the people of village Bapora passed a resolution vide which the plot in dispute was given to the plaintiff Lakhi Ram and on this basis the learned trial Court further held that it was prima facie proved that the plaintiff was the owner of the disputed plot, although he cannot be said to be absolute owner of the same till permission from the government is received and permanent title of ownership is conferred upon him. It was also held that the plaintiff was entitled to seek possess on.
7. Issue No. 2 was decided against the plaintiff by holding that order of the consolidation authorities was required to be challenged under the East Punjab Holidays (Consolidation & Prevention of Fragmentation) Act, 1948 and could not be challenged in the Civil Court. On Issue No. 3, it was held that the plaintiff was entitled to possession of plot No. 1632. On issue No. 4, it was held that the suit filed by the plaintiff was within limitation as the same was instituted within 12 years of dispossession. On Issue No. 5, it was held that the suit was not barred by the principles of res judicata as in the previous suit, liberty was granted to dispossess the defendant by due process of law. On Issue No. 7 it was held that the plaintiff had not become the owner of the plot by adverse possession. Issue No. 8 was not pressed and accordingly the suit filed by the plaintiff was decreed.
8. In appeal, the learned lower Appellate Court came to the conclusion that defendant-appellant had failed to prove that he was owner of plot No. 1632 as asserted by him as his possession over the plot was unauthorized though it was held that the findings recorded in the previous suit did not operate as res judicata.
9. The contention for the learned Counsel for the defendant-appellant that the plaintiff-respondent has failed to prove his ownership over the plot was rejected by observing that it was for the proprietors of Panna Chohan to come forward and dispute the claim of the plaintiff in this respect, but the defendant was nobody unless he has some title to the said property.
10. The learned lower Appellate Court also observed that the title of the defendant to the property was not at all proved and further the plaintiff was dispossessed from the property and, therefore, he was entitled to the decree for possession, even though the date of the actually dispossession was not proved. The plea of the defendant -appellant that the plaintiff did not have a valid title and, therefore, should have been non-suited, was rejected by observing that the plaintiff was dispossessed and, therefore, he was entitled to possession of the said plot. In support of this findings reliance was placed by the learned, lower Appellate Court on the judgment of this Court in the case of Sher Singh v. Sham Singh 1980 P.L.J. 529 and thus dismissed the appeal.
11. The following substantial questions of law arise for consideration in this appeal:
1. Whether the findings recorded by the learned Courts below regarding dispossession of the plaintiff-respondent are perverse and outcome of misreading of evidence?
2. Whether the plaintiff was entitled to maintain the present suit seeking possession from the person in his established possession in absence of title to the property?
12. Mr. H.N. Mehtani, learned Counsel appearing on behalf of the defendant-appellant vehemently argued that the findings recorded by the learned Courts below are outcome of misreading of evidence brought on record and, therefore, are perverse. The learned Counsel for the appellant referred to Exhibit P-2 a judgment passed inter se between the parties in the previous suit for permanent injunction filed by the defendant-appellant against the plaintiff-respondent. In the said judgment, the plea of the plaintiff-respondent that he was dispossessed by the defendant-appellant was disbelieved. It was clearly held in the said, judgment that the plaintiff-respondent was dispossessed after the institution of the suit was false. In view of the findings recorded in the previous suit by the learned courts below that the plaintiff-respondent was entitled to possession having been dispossessed, cannot be accepted.
13. It is also not in dispute that the plaintiff-respondent had failed to prove that his title is better than that of the defendant-appellant, so as to seek possession. In absence of a valid title, it was not open to the plaintiff to have filed a suit for possession. The plea of the plaintiff-respondent that he was owner of the property has been disbelieved by the learned Courts below and that too rightly as no title admittedly was passed on to the plaintiff. It is held that the findings recorded by the learned court below were perverse and is outcome of misreading of evidence, which cannot be sustained. It is further held that in absence of admitted title the plaintiff was not entitled to maintain a suit for possession.
Accordingly, the appeal is allowed, the judgments and decree passed by the learned Courts below are set aside and the suit filed by the plaintiff-respondent is dismissed with no order as to costs.