R.S.A.No. 1478 of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1478 of 1998
Date of decision: 27.8.2009
Sushila Devi
......Appellant
Versus
Ropar Improvement Trust, Ropar and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.L.Sharma,Advocate,
for the appellant.
None for the respondent.
****
SABINA, J.
Plaintiff Sushila Devi filed a suit for permanent injunction,
which was decreed by the Additional Civil Judge (Sr.Divn.) Ropar
vide judgment and decree dated 9.4.1996. In appeal, the said
judgment and decree were set aside by District Judge, Rupnagar
vide judgment and decree dated 11.3.1998 and the suit of the plaintiff
was dismissed with costs. Hence, the present appeal by the
plaintiff.
R.S.A.No. 1478 of 1998 2
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. The brief facts of the case are that Dr.Dharam
Pal husband of the plaintiff/respondent No.1 was owner in
possession of the house in dispute; that he was also
owner of the land adjoining to the same; that Dr.Dharam
Pal gifted half portion of the said house and the adjoining
land in favour of the plaintiff during his life time. It is also
alleged that Dr.Dharam Pal died in March, 1991 and after
his death plaintiff inherited his share in the suit
land/property being his widow and only legal heir, so she
is owner in possession of the suit property. It is further
alleged that there is boundary wall on the eastern
northern and southern sides upto the height of 4 ½ feet
with barbed wire fitted with iron angulars; that eucalyptus
and kikar trees were planted more than 21 years ago in
the property in suit by Dr.Dharam Pal; that there was an
acquisition of award given by the Land Acquisition
Collector, Ropar on 1.5.1976 in respect of the land of
Dr.Dharam Pal; that no award was given in respect of the
structure in the acquired land; that the structure clause in
the award at page 14 is as under:-
“There are a number of structures standing in
the scheme area. The Improvement Trust,
R.S.A.No. 1478 of 1998 3Ropar has already been asked to get the
estimates and plans prepared from some
qualified trust engineering staff. The same
are not as yet available, accordingly the
structures shall be disposed of by a separate
award as and when received from the
Technical staff of the trust.”
It is also alleged that no award of the structure of the
plaintiff has been given; that Dr.Dharam Pal challenged
the award dated 1.5.1976 in the Hon’ble High Court
through Civil Writ Petition; that the trust had made
statement in that court as under:-
“It is stated by Mr.Kuldip Singh learned
counsel for the respondents that the plots
No.664, 665, 666 shall be allotted to the
petitioner at the reserved price which shall be
approximately Rs.50 sq. yards. It is further
stated that the built up area of the petitioner
has been adjusted in the scheme. In view of
the aforesaid statements the petitioner does
not press the petition. Consequently, it is
dismissed with no order as to costs.”
It is further alleged that writ petition No.5933 of 1976 was
withdrawn on 12.5.1980; that at that time the Trust told
R.S.A.No. 1478 of 1998 4
that plots No.660 to 666 are not falling in the area of house of
the plaintiff; that thereafter the Trust started causing threats to
demolish the structure of the house of the plaintiff; that a civil
suit was filed against defendant No.1 in the court of Senior
Sub Judge, Ropar and defendant No.1 Trust made
statement in the court that defendant will not take any
forcible action against the plaintiff in respect of the suit
property and legal action will be taken against the plaintiff,
so as the suit was withdrawn on 20.8.1993; that
defendant No.1 has violated the undertaking and
demolished part of eastern side boundary wall and part of
boundary wall of the northern side upto the plinth level on
11.10.1993 illegally and forcibly. It is further alleged that
defendant No.1 connived with defendant No.2 who has
cut 22 eucalyptus trees by engaging the labour of
defendant No.3 with promise to sell the same to
defendant No.3 on 5.11.1993; that the plaintiff did not
allow to remove those trees from the suit land and the
same are lying at the spot; that the defendants have no
right to cut and remove the standing trees from the suit
property; that the defendants were causing threats to
demolish the structure of the house of the plaintiff;
that the plaintiff has suffered loss of Rs.10,000/-
due to demolition of the boundary wall by
defendant No.1; that she has also suffered loss of
R.S.A.No. 1478 of 1998 5Rs.5,000/- due to cutting of 22 trees from the suit property
illegally and forcibly and that the defendants were out to
dispossess the plaintiff from the suit property illegally and
forcibly. It is also alleged that she has no claimed any
compensation in respect of land under her house
measuring 5 kanals 17 marlas, nor defendant No.1 has
assessed any compensation in respect of the suit
property, as the same has not been acquired by the Land
Acquisition Collector. On the aforesaid allegations, the
plaintiff filed suit against the defendants for permanent
injunction restraining them from interfering in her
ownership with possession by demolishing any part of her
house and from removing 22 eucalyptus trees illegally
cut by defendant No.2 from the suit property.
3. On notice, defendant No.1/appellant filed written
statement by taking preliminary objections that the
plaintiff has no locus standi to file the suit; that the suit is
not maintainable in the present form and that the plaintiff
is estopped from filing the suit by her act and conduct. It
is alleged that the land of the plaintiff had been acquired
by the defendant Trust for development of the scheme
known as Giani Zail Singh Nagar, Ropar; that husband of
plaintiff Dr.Dharam Pal had challenged the acquisition
proceedings by filing writ petition in the court and has
R.S.A.No. 1478 of 1998 6sought an injunction order for staying operation of the
award and not dispossessing her from the land in dispute
in the year 1980; that the said writ petition was dismissed
on 12.5.1980 by the Hon’ble High Court on the statement
of counsel for the defendant Trust that possession of
plots No.660, 661, 662 and 663 was to be given to the
defendants and plots No.664, 665, 666 had to be allotted
to the plaintiff on the reserve price by the defendant Trust
and the same would be adjusted in the Scheme. It is
further alleged that Dr.Dharam Pal was not in possession
of the entire land; that he was in possession of only
constructed house, after getting the site plan sanctioned
by the Municipal Committee, Ropar; that the remaining
portion was already in possession of defendant No.1 in
view of acquisition proceedings done by it; that
Dr.Dharam Pal had never gifted out any portion of the
said house or adjoining land in favour of the plaintiff; that
there was no boundary wall on the eastern, northern and
southern sides; that in fact defendant Trust is in
possession of the land which falls within plots No.666 to
668. It is also alleged that eucalyptus trees have already
been cut by the plaintiff without knowledge of the
defendant Trust, though the plaintiff had no concern with
the same. The defendant admitted that Dr.Dharam Pal
R.S.A.No. 1478 of 1998 7husband of the plaintiff had challenged the acquisition
award and counsel for defendant made statement and
writ petition of Dr.Dharam Pal was dismissed on
12.5.1980 as withdrawn. Defendant also admitted the
filing of civil suit by the plaintiff against defendant No.1
but the defendant never admitted that the plaintiff had
withdrawn the suit on 20.8.1993; that defendant No.1
never violated any undertaking given in the court; that plot
Nos. 660 to 666 out of which plots No.664 to 666 were to
be given to the plaintiff at the reserve price, have already
been demarcated but the plaintiff has not deposited the
amount of sale price of the plots which were given to her
as per undertaking given in the Hon’ble High Court and
without depositing the sale price, said plots cannot be
transferred or allotted in the name of the plaintiff; that the
defendant never caused any threat to the plaintiff nor
caused her any loss to her. It is also alleged that
defendant No.1 had suffered a loss of more than
Rs.15,000/- at the hands of the plaintiff who had cut and
removed the eucalyptus trees from the suit land which fell
between plot Nos. 660 to 664; that there is no question of
dispossession of the plaintiff from the suit land as she is
neither the owner nor in possession of any portion of the
suit land. Other averments made in the plaint were
R.S.A.No. 1478 of 1998 8denied and prayer was made for dismissal of the suit.
Defendant/respondent No.2 also filed separate
written statement by taking preliminary objections which
were taken by defendant No.1 she has denied ownership
with possession of the plaintiff over the suit property; that
there is no boundary wall at the spot and there is no
barbed wire; that no eucalyptus or kiker tree is present at
the spot; that the spot is simple land comprising of plots
situated in Scheme No.1 i.e. Giani Zail Singh Nagar. It
was admitted by him that the award was given by the
Land Acquisition Collector and that plots No.660 to 666
have been demarcated and plot No.660 has been allotted
to him. He also pleaded that this plot has been allotted
out of the oustee quota and he has made payment to the
Improvement Trust, who has delivered possession of the
same to him; that the plaintiff has no right to interfere with
peaceful possession of plot No.660 of defendant No.2
that the applications filed by the plaintiff for the
appointment of Local Commissioner, were dismissed by
the court of Senior Sub Judge, Ropar as the property was
already acquired. Other averments made in the plaint
were denied and prayer was made for dismissal of the
suit.”
On the pleadings of the parties, following issues were
R.S.A.No. 1478 of 1998 9framed by the trial Court:-
“1. Whether plaintiff is owner in possession of the
house in dispute? OPP
2. Whether defendants are illegally and forcibly
interfering with possession of the plaintiff over the house
in dispute? OPP
3. Whether plaintiff has no locus standi to file the
present suit ? OPD
4. Whether the suit is not maintainable in the present
form ? OPD
5. Whether plaintiff is estopped from filing the present
suit by her act and conduct? OPP
6. Relief.
The substantial question of law that arises in this case is
“whether the finding of the learned District Judge is perverse ignoring
relevant evidence on record?”
On the last many dates, no one had appeared on behalf
of the respondents and hence, the arguments in this case of the
learned counsel for the appellant were heard.
The plaintiff had filed a suit for permanent injunction that
the defendants be restrained from interfering in her possession by
demolishing any part of the house in dispute. Learned counsel for
the appellant has argued that the land of the plaintiff was acquired by
the Improvement Trust and the constructed area was, however,
R.S.A.No. 1478 of 1998 10exempted from acquisition. The compensation was paid with regard
to 38 kanals 14 marlas of land. So far as land in dispute was
concerned, the same was exempted from acquisition and no
compensation was paid qua the same. The said fact was evident
from the testimony of DW-2 Dharampal. Ex.DW-2/C in this regard
was the details of payment of compensation amount paid to the land
owners. Learned counsel has further submitted that as per the
revenue record on the file, the suit property was described as Gair
Mumkin Makan/Bara.
As per the report of the Local Commissioner when he
visited the spot, there was labour of 10-12 persons who were busy in
cutting the eucalyptus trees at the spot. They took eucalyptus trees
in a tractor in his presence. On disclosing of his identity by the Local
Commissioner the said persons left the spot. The labour was also
busy in demolishing the boundary wall. In the site plan attached with
the report, the place from where the boundary wall had been freshly
demolished has been shown. Thus, as per the report of the Local
Commissioner, the house of the plaintiff was having a boundary wall.
Learned District Judge has ignored the report of the Local
Commissioner as well as the testimony of DW-2 Dharampal and
Ex.DW-2/C. From Ex.DW-2/C, it is evident that compensation qua
38 kanals 14 marlas has been paid to Dr.Dharampal, husband of the
plaintiff. Even in Annexure R-1 placed on record during the
pendency of this appeal, it has been certified by the Executive
R.S.A.No. 1478 of 1998 11Officer, Improvement Trust that Rs.1,90,647.91 paise has been
accepted as compensation by Dr.Dharampal. The said certificate,
however, incorrectly shows that the said compensation was qua 42
kanals 14 marlas of land, whereas, as per Ex.DW-2/C, the said
amount of compensation was paid qua 38 kanals 14 marlas of land.
There is nothing on record to suggest that the possession of the land
in dispute was ever taken by the Improvement Trust in a suit for
permanent injunction. The Court was only required to see whether
the plaintiff was in possession of the suit land or not. Since the
plaintiff had been successful in proving her possession over the
property in dispute, she could not be dis-possessed from the suit
property except in due course of law.
Learned District Judge had accepted the appeal and
consequently, dismissed the suit of the plaintiff by ignoring relevant
evidence on record. In the award (Ex.P-11), it is clearly mentioned
that regarding the structure standing in the scheme area, a separate
award would be passed as and when the estimate and plans
prepared by the technical staff of the trust were received. No such
award, having been passed with regard to the suit property, has,
however, been placed on record. Hence, the substantial question of
law arising in this appeal is answered accordingly.
Consequently, this appeal is allowed. The impugned
judgment and decree of the learned District Judge are set aside and
the suit of the plaintiff for permanent injunction is decreed. The
R.S.A.No. 1478 of 1998 12defendants are restrained from dis-possessing the plaintiff from the
suit land except in due course of law.
No order as to costs.
(SABINA) JUDGE August 27, 2009 anita