RSA No.272 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
RSA No.272 of 2009
Date of Decision: 6.10.2009
Aniraj Kumar and others .....Appellants
Vs.
Krishan Chand and others ....Respondents
....
CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA
****
Present : Mr.Amit Jain, Advocate for the appellants.
….
RAJIVE BHALLA, J
This order shall dispose of RSA Nos.272 and 273 of 2009, as
they relate to the same parties and the same dispute.
The appellants filed a suit for permanent injunction to restrain
the respondents from interfering in their peaceful possession over the
property denoted by the letters ABCD and shown in the colour red, in the
site plan appended with the plaint. The appellants pleaded that the suit
property lies within the abadi deh of village Mullana, Tehsil Barara,
District Ambala is owned and possessed by them but the respondents are
interfering in their possession. The respondents filed a written statement
denying the averments in the plaint and alleging that the property belongs to
the Brahmin Dharamshala Trust Society, Mullana. The Dharamshala was
reconstructed in the year 1990, with the help of Gram Panchayat and by
RSA No.272 of 2009 2
collecting money. The Brahmin Dharamshala Trust Society, respondent
no.5 filed a separate suit for grant of an injunction to restrain the appellants
from interfering in its possession over the suit property. The suits were
consolidated vide order dated 13.2.2001 and evidence was led in the suit
titled as Prem Chand V. Krishan Chand.
The trial court dismissed the suit filed by the appellants and
decreed the suit filed by Brahmin Dharamshala Trust Society respondent
no.5. The appellants filed an appeal. Vide judgement and decree dated
16.4.2007, the Additional District Judge, Ambala, accepted the appeal, set
aside the judgement and decree passed by the trial court and while remitting
the matter directed the trial court, to decide the matter afresh in terms of the
following directions :-
“Without going into further details of the case, this court
is of the considered opinion that this is a fit case where
matter should be remanded back to the trial court to
decide the matter afresh and give detail findings on the
issues framed in the suit titled as Brahmin Dharamshala
Vs. Niraj Kumar and thereafter the learned Trial Court
will weigh findings on all the issues and then deliver the
judgement.
As a sequel to my above said discussion both the
appeals are allowed and the impugned judgement and
decree is ordered to be set aside. The matter is remanded
back to the learned Trial Court with the direction to give
detailed findings on the issues framed in the suit titled as
Brahmin Dharamshala Vs. Niraj Kumar and then deliver
RSA No.272 of 2009 3the judgement.”
The Civil Judge (Junior Division),Ambala City, after hearing
arguments afresh, once again dismissed the suit filed by the appellants and
decreed the suit filed by respondent no.5. Aggrieved by the aforementioned
judgement and decree, the appellants filed an appeal. Vide judgement and
decree dated 9.9.2008, the Additional District Judge, Ambala, dismissed
the appeal.
Counsel for the appellants submits that the trial court has not
obeyed the directions issued by the Additional District Judge, Ambala,
while remanding the matter. The trial court was directed to give a detailed
finding as to the ownership of Brahmin Dharamshala before delivering its
judgement. Despite this direction, the trial court placed the onus to prove
ownership on the appellants and then proceeded to hold that in the absence
of any satisfactory evidence produced by the appellants to prove their
ownership, the Brahmin Dharamshala is held to be owner in possession of
the suit property. It is submitted that as the trial court has ignored the
directions issued by the Additional District Judge, Ambala, the impugned
judgements are illegal and void and, therefore, the following substantial
questions of law arise for adjudication :-
“a. Whether in the facts and circumstances of the
instant case the impugned judgements and decrees passed
by the learned courts below ignoring the specific
directions contained in the order dated 16.4.2007 can be
sustained in law ?
b. Whether the approach of the learned courts below
RSA No.272 of 2009 4in decreeing the suit filed by Brahmin Dharamshala
Mullana and dismissing the suit filed by appellants
ignoring the fact that the Respondent Dharamshala had
failed to discharge its onus and had failed to led
affirmative evidence to show its title, is not illegal and
unsustainable in law ?”
I have heard learned counsel for the appellants, perused the
impugned judgements and considered the questions of law framed by
counsel for the appellants but express my inability to hold that the
impugned judgements suffer from any error so as to raise a question of law,
much less a substantial question of law. A perusal of the judgement passed
by the trial court discloses that it has complied with the order of remand, in
letter and in spirit. The suit property falls within the abadi deh of village
Mullana. As a general rule ownership of land that falls within the abadi of
village follows possession. The trial court has relied upon evidence
produced by Brahmin Dharamshala, in the shape of proceedings of the
Gram Panchayat, copy of the muster roll, documents reflecting the
construction of the Dharamshala with the help of the Gram Panchayat, the
electricity connection in the name of Ishwar Dutt, a member of the society,
the existence of a peepul tree with a platform for the members to meet and
oral depositions to hold that the society is in possession and, therefore,
owner of the suit property. The argument that the order of remand has been
ignored is, therefore, factually incorrect. The appellants on the other hand
have failed to adduce any evidence in support of their claim of ownership
or possession and despite an assertion that there is documentary evidence
RSA No.272 of 2009 5
to prove their ownership have failed to produce any such evidence. The
argument that the onus was placed upon the appellants to prove their
ownership is also incorrect.
In view of what has been stated herein above, as there is no
merit in these appeals, they are dismissed with no order as to costs.
6.10.2009 (RAJIVE BHALLA) GS JUDGE