R.S.A. No. 3471 of 2006 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 3471 of 2006 (O&M)
Date of Decision : 18.2.2009
Bhagwanti & another
.......... Appellants
Versus
Rakesh Kumar
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. G.L. Bajaj, Advocate
for the appellants.
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VINOD K. SHARMA, J. (ORAL)
C.M. No. 8630-C of 2006
This is an application under Section 5 of the Limitation Act for
condoning the delay of 6 days in filing the appeal.
For the reasons stated in the application, the delay of 6 days in
filing the appeal is condoned.
C.M. stands allowed.
R.S.A. No. 3471 of 2006
This regular second appeal is directed against the judgments and
decree dated 7.1.2006 and 12.5.2006 passed by the learned Courts below
vide which suit filed by the plaintiff for permanent injunction stands
dismissed.
The plaintiff brought a suit on the plea that he was co-owner in
R.S.A. No. 3471 of 2006 2
Khewat No. 12 situated at village Mehma Sarkari and that he was in
possession of 25 kanals 1 marlas of land which stands established by way of
the revenue record. It was claimed that the crops sown by the plaintiff were
standing over the disputed property and further that the defendants are
stranger to the land and have no concern with it. It was also the case of the
plaintiff that defendants being land grabbers was threatening to dispossess
the plaintiff from the suit land in illegal manner.
On notice having been issued the suit was contested by
defendants No. 1 to 3 and defendant No. 4 was proceeded ex parte.
Defendants No. 1 to 3 contested the suit by raising preliminary objection of
locus standi, want of cause of action. It was claimed that the plaintiffs were
neither owner nor in possession of the suit land, and that the plaintiff
concealed the material facts from the Court.
It was also pleaded that the name of defendant No.1 was
wrongly written as Rakesh Kumar instead of Ramesh Kumar.
On merit, it was pleaded that the suit land is owned and
possessed by defendants No.1 to 3, and the khasra-girdawari also existed in
their favour, in pursuance to the correction by the Assistant Collector
Second Grade, Bathinda, which was said to have been corrected after due
notice to the plaintiff-appellant.
The learned trial Court on appreciation of evidence brought on
record recorded a finding of fact that plaintiff appellant failed to prove
possession over Khasra No. 190/396 whereas there was no dispute with
regard to Khasra No. 108 (16-7). The issue whether the plaintiff was
R.S.A. No. 3471 of 2006 3
entitled to permanent injunction was decided against him.
The Courts below held that the suit filed by the plaintiffs was
not maintainable as they failed to avail the remedy to challenge the order of
Khasra girdawari though passed in his presence.
In appeal finding of fact stands affirmed.
The learned counsel for the appellants contends that this appeal
raises the following substantial question of law for consideration by this
Court :-
Whether non-challenge to order of A.C. IInd grade
could be fatal to suit of plaintiff?
The learned counsel for the appellants contends that the learned
Courts below erred in law in deciding the suit by placing reliance on the
order by the Assistant Collector IInd Grade, correcting khasra girdawari,
which was not binding on the civil Court.
The civil Court was required to decide the question of law on
the basis of evidence brought on record. There is no force in this contention.
It was plaintiff who was placed reliance on the revenue record to assert his
possession over the suit property, which was disputed by the defendant-
respondent.
The order of Assistant Collector IInd Grade was passed prior
to the filing of the suit by the plaintiff, but for the reasons best known to
him they chose not to challenge the said order.
The learned Courts below, therefore, rightly held that the
plaintiff has failed to prove possession over the the suit property.
R.S.A. No. 3471 of 2006 4
The appeal raises no substantial question of law.
No merit.
Dismissed in limine.
18.2.2009 ( VINOD K. SHARMA ) 'sp' JUDGE