RSA No.2879 of 2004 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2879 of 2004 (O&M)
Date of decision: 16.9.2008
Baldev Raj and others ...... Appellants
versus
Tarsem Singh and others .......Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Satinder Khanna, Advocate for the appellants.
Mr. Malkiat Singh, Advocate for respondents No.1 to 11 and
13.
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Rakesh Kumar Garg, J .
1. The plaintiffs filed a suit for mandatory injunction to the effect
that defendants be ordered to restore the land measuring 32 kanals 8
marlas as detailed in the head note of the plaint, which is reserved as
cremation ground for the adharmis for burning the dead persons, to its
original position after the removal of structure. It was also averred that the
defendants after encroaching upon this land have made temporary
construction and thereby they have prevented the use of the burning
ground. The act of the defendants is illegal and unlawful. Hence, this suit.
2. The suit was contested by the defendants by filing written
statement and counter claim wherein it has been stated that the plaintiffs
have got no concern with the suit land and it has never been the cremation
ground nor it was reserved for cremation ground and in fact the property in
dispute is abadi deh and ownership of Makbuja adharmis. The defendants
have raised the construction of their residential houses over the suit
RSA No.2879 of 2004 (O&M) 2
property and are in peaceful and continuous possession for more than 30
years. Thus, the suit of the plaintiffs is liable to be dismissed.
3. In the counter claim, the defendants have claimed the relief of
permanent injunction restraining the plaintiffs from converting the property
in dispute into cremation ground and from demolishing the houses of the
defendants/claimants and from raising any construction over the suit
property. The trial Court vide its judgment and decree dated 20.12.2000
dismissed the suit of the plaintiffs. However, the counter claim of the
defendants for the relief of permanent injunction was decreed by
restraining the plaintiffs from converting the entire suit property into
cremation ground and from demolishing the houses of the
defendants/counter claimants over the suit property bearing Khasra No.82
min as detailed in head note of the plaint except the portion ABCDEF as
detailed in head note of the counter claim and as also shown in the site
plan appended with the written statement and counter claim.
4. The plaintiffs filed an appeal against the dismissal of their suit,
which was dismissed by the Additional District Judge, Nawanshahar vide
its judgment and decree dated 13.2.2004. However, no appeal was filed
by the plaintiffs against the decree of counter claim of the defendants which
was allowed by the trial Court.
5. This regular second appeal has been filed by the plaintiffs
against the judgment and decree of the Lower Appellate Court passed in
Civil Appeal No.9 of 2003 upholding the findings, recording the dismissal of
the suit filed by the plaintiffs for mandatory injunction. The appellants have
not challenged the findings of the trial Court whereby counter claim of the
defendants was allowed and the plaintiffs were restrained permanently
from interfering in the possession of the defendants. This fact is not
disputed by the learned counsel appearing for the appellants. Since the
RSA No.2879 of 2004 (O&M) 3
findings of the trial Court have become final between the parties regarding
the counter claim filed by them and the plaintiffs have been restrained
permanently from interfering in the possession of the defendants/restrained
over the land in dispute, the present appeal is without any merit.
6. No substantial question of law arises in this appeal.
7. Dismissed.
September 16, 2008 (RAKESH KUMAR GARG) ps JUDGE