R.S.A.No. 1174 of 2009(O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1174 of 2009(O&M)
Date of Decision:July 07, 2009
Harish Kumar
---Appellant
versus
Shri Suresh Kumar and another
---Respondents
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr.Karan Bhardwaj, Advocate,
for the appellant.
***
SABINA, J.
Plaintiff- Harish Kumar filed a suit for permanent injunction
restraining the defendants from cutting and removing the trees standing in
Khasra No. 33 Rectangle No. 26 situated in village Jaroda, H.B.No. 403
Tehsil Jagadhari District Yamuna Nagar. The suit of the plaintiff was
dismissed by Civil Judge (Senior Division), Jagadhari vide judgment and
decree dated 8.6.2002.In appeal, the said judgment and decree were upheld
by Additional District Judge, Yamuna Nagar vide judgment and decree
dated 14.5.2008. Hence, the present appeal.
The case of the parties as noticed by learned Additional
District Judge, Yamuna Nagar, in paras 2 and 3 of its judgment, is as under:-
“As per the case of the plaintiff, Jai Gopal, grand-father of the
R.S.A.No. 1174 of 2009(O&M) {2}
plaintiff was the owner of the suit land and after his death, the
suit land was inherited by his father Krishan Chand and
defendant No. 1 Saran Behari Lal in equal shares and in this
way Krishan Chand, father of the plaintiff was owner in
possession of ½ share of the suit land, but, defendant No. 1 in
collusion with the revenue officials got entered the land
measuring 1 K- 6 M more in khasra No. 33//27 fraudulently.
However, at the spot plaintiff and defendants are in possession
of one-half share each. Taking undue advantage of the wrong
entries in the revenue record defendants have started to cut and
remove the standing trees in the land in dispute illegally and
forcibly. Thus, he has sought a decree for permanent
injunction restraining the defendants from cutting and
removing the trees sanding in khasra numbers 33//26 and
33//27 and also from interfering in the possession of the
plaintiff over the suit land in any manner whatsoever and from
changing the nature of the suit land.
Defendants appeared and filed their written
statement controverting all the claim put forth by the plaintiff
and it is pleaded that Krishan Chand, father of the plaintiff and
Saran Behari Lal, defendants No. 1 were owner of Khasra No.
637, measuring 12 Bighas- 11 Biswas which was partitioned
vide mutation No. 250, Khasra No. 637 was bifurcated into
khasra numbers 637/1 (4-14) and 637/2 (7-14), khasra no.
637/1 had come to the share of Krishan Chand, father of the
plaintiff and khasra No. 637/2 came in the share of defendant
R.S.A.No. 1174 of 2009(O&M) {3}
No. 1. Thereafter, consolidation took place and all the khasra
numbers have been changed into new khasra numbers i.e.
khasra numbers 33//26, 33//27 and 33//28, khasra numbers
33//26 and 33//28 measuring 13 K-6 M (garden) and 33//28 (0-
5) (Gair mumkin tubewell) together with other land is owned
and possessed by the plaintiff and khasra No. 33//27 measuring
14-19 is owned and possessed by the defendants. Partition had
taken place in the life time of Krishan Chand, father of the
plaintiff by metes and bounds in the year 1957-58. The factum
of any sort of their collusion with the revenue officials has been
vehemently denied. It is pleaded that the plaintiff has no right,
title or interest in the suit property. While challenging the
locus standi and cause of action of the plaintiff to file the
present suit it is pleaded that the suit of the plaintiff is
hopelessly time barred and his suit being false and frivolous is
liable to be dismissed.”
On pleadings of the parties, following issued were framed by
the learned trial court:-
(1)Whether the suit land is joint between the parties to the suit?
OPP
(2)Whether the plaintiff is estopped from filing the present suit
by his own acts and conducts? OPD
(3)Whether the plaintiff has no right, title or interest in the suit
property? OPD
(4)Whether the plaintiff has no locus-standi to file the present
suit? OPD
R.S.A.No. 1174 of 2009(O&M) {4}
(5)Whether the plaintiff has no cause of action for filing the
present suit? OPD
(6)Whether the suit of the plaintiff is hopelessly time barred?
OPD
(7)Whether the suit of the plaintiff is false, frivolous and has
been filed simply to harass the defendants and the defendants
are entitled to special costs u/s 35-A CPC ? OPD
(8)Relief.
After hearing learned counsel for the appellant, I am of the
opinion that the present appeal does not warrant interference by this Court.
Sharan Behari Lal-defendant No.1 and Krishan Chand, father
of plaintiff, are sons of Jai Gopal. Undisputedly, mutation No. 250 (Ex.D-
2) was sanctioned in favour of Krishan Chand and Sharan Behari Lal in the
year 1960. In this regard, an entry was incorporated in the revenue record
by the order of the court. Kishan Chand was given three khasra Nos. 637/1
(4-14), 640 (1-11), 641 (1-9). Thus, he got total land measuring 7 kanals 14
marlas. Sharan Behari Lal, on the other hand got Khasra No. 637/2, (7-14).
Besides this Khasra No. 805/1 (2-2) also came to the share of Krishan
Chand whereas Khasra No. 804(1-7) and Khasra No. 805/2(0-15), in all
measuring 2 kanals 2 marlas came to the share of Sharan Behari Lal. Both
Sharan Behari Lal and Krishan Chand came in separate possession of
Khasra numbers as per the partition by way of mutual agreement. During
consolidation, new khasra numbers were allotted to Sharan Behari Lal and
Krishan Chand. Sharan Behari Lal was allotted Khasra No. 33 Rectangle
No. 27(14-19) in lieu of old Khasra numbers wheras Khasra No. 33
Rectangle No. 26 was allotted to Krishan Chand. In these circumstances,
R.S.A.No. 1174 of 2009(O&M) {5}
both the courts below have rightly held that since at the time of partition by
way of mutual agreement both Krishan Chand and Sharan Behari Lal had
got 19 kanals and 16 marlas of land each, then the plea of the plaintiff that
he had got less land during partition, is without any basis. Moreover, the
mutation was also sanctioned in terms of the partition by way of mutual
agreement. Later on during consolidation, Krishan Chand and Sharan
Behari Lal were allotted new Khasra numbers. The plaintiff could not seek
injunction with regard to the khasra number which has come to Sharan
Behari Lal during consolidation. Thus, both the courts below have rightly
dismissed the suit of the plaintiff.
No substantial question of law arises in this appeal.
Accordingly, the same is dismissed.
(SABINA)
JUDGE
July 07, 2009
PARAMJIT