JUDGMENT
N.K. Kapoor, J.
1. During the pendency of appeal some of the inhabitants of locality where land in dispute is situated, filed an application under Order 1 Rule 10 CPC, which was ordered to be disposed of by the Court along with the appeal.
2. According to the applicants they being inhabitants of the locality are vitally interested in the adjudication of the case and so come within the ambit of a necessary party and in any case a ‘Proper Party’ and so their impleading will help the Court in determining the issues to be resolved by the Court.
3. Counsel for the respondents on the other hand has opposed this prayer on the ground that they have no interest in the property and the present dispute is only between the plaintiffs and defendants. Otherwise too, plaintiffs are dominus litus and have to implead only such persons who have attempted to infringe upon their valuable rights. In the instant case, it is the attempt of Municipal Corporation to convert a personal property of the plaintiffs as a park that has led to filing of the suit. In any case, applicants have no independent claim to this property.
4. Haying heard the counsel for the parties, I am of the view that this application deserves to be dismissed as the applicants cannot be termed to be a ‘necessary party’ under Order 1 Rule 10 CPC. Applicants acquire any interest, if any, only when the disputed property is held as a ‘park’ and not otherwise. Such an application had earlier been dismissed by the trial Court as well. Accordingly, finding no merit in it, the same is dismissed.
R.S.A. No. 2315 of 1988:
5. This is defendant’s regular second appeal against the judgment and decree of the Additional District Judge whereby appeal filed by the plaintiffs was accepted thereby decreeing their suit.
6. Briefly put, plaintiffs filed suit for perpetual injunction restraining defendants Nos. 1 and 2 from taking forcible possession of land comprised in Killa No. 76/3/2, Khewat No. 1 and Khatauni No. 32/80 as per details given in jamabandi for the year 1970-71.
7. Plaintiffs claimed relief of permanent injunction restraining the defendants from forcibly taking possession of land measuring 3 kanal 16 marlas as per details noticed above. It is the case of the plaintiffs that they along with defendant No. 4 are owners-in-possession of the suit land which is in their cultivating possession. Entries in revenue record continue to show plaintiffs as well as defendant No. 4 to be in possession of the disputed land. It has been further stated in the plaint that defendant No. 3 – Smt. Rajinder Kaur, mother of the plaintiffs entered into some agreement with Municipal Corporation. Fearing that their land be not taken by the Municipal Corporation the plaintiffs have approached this Court for an appropriate relief.
8. Defendants Nos. 1 and 2 put in appearance and filed written statement. By way of preliminary objection it has been stated that site in dispute already stands developed as a park which is provided in the Town Planning Scheme for the area. On merit, it has been stated that before developing this area, a statement of ownership was prepared and as per this Smt. Rajinder Kaur – defendant No. 3 is recorded as owner of the site in dispute. Factum of plaintiffs being in possession of the site in dispute at the spot was denied. Reference has also been made to the Town Planning Scheme and it has been further stated that since no objection was raised by the plaintiffs the same has become final and hence binding upon the plaintiffs.
9. On the pleadings of the parties, the following issues were framed :-
(1) Whether the plaintiff is entitled to the injunction as prayed for ? OPP.
(2) Whether the suit has become infructuous as alleged ? OPD.
(3) Relief.
Parties were afforded opportunities to adduce evidence. The trial Court after considering the evidence led, finally came to the conclusion that property in dispute which was owned by the plaintiffs now vests in Municipal Corporation and is being used as a park The Court further held that the plaintiffs have not been found to be in actual physical possession of the land in dispute. Resultantly, the suit of the plaintiffs was dismissed.
10. The lower appellate Court once again examined the matter on fact as well as law. The Court on perusal of the statement of the witnesses, especially the witnesses examined by Municipal Corporation as well as on the basis of documentary evidence, came to the conclusion that the plaintiffs are owners-in-possession of the suit land and so reversed the judgment and decree of the Court below, thus decreeing the suit of the plaintiffs as prayed for.
11. Counsel for the appellants has termed the findings recorded by the lower appellate Court to be not only unjust but improper. According to the counsel the lower appellate Court has in fact erred in law in not properly perusing the various documents adduced in evidence by the defendants which clearly prove that pursuance to the Town Planning Scheme, the area now subject matter of dispute forms part of a park. Since no objection was raised by the plaintiffs with regard to the Town Planning Scheme, which was framed under the Punjab Municipal Act, the plaintiffs are not debarred from raising the present controversy. Not only this as a matter of fact whole of land subject matter of Town Planning Scheme was in fact shown to be owned by Smt. Rajinder Kaur – defendant No. 3, mother of the plaintiffs, who as a matter of fact for herself and on behalf of the plaintiffs submitted a claim for development of the land which was ultimately sanctioned by the Corporation with various stipulations. Thus, the lower appellate Court has in fact erred in law in simply by-passing the Town Planning Scheme. The Court has also erred in coming to the conclusion that the plaintiffs are in possession of the site in dispute. As per various documents on record and especially the photographs clearly bring out that the land now subject matter of dispute is being used by the inhabitants of the locality as a park/playground. In support of the aforesaid pleas, counsel for the appellant made reference to the various documents i.e. Exhibits D-24, D-14, D-36, D-37, D-23, D-5, D 30, D-34, D-17 to D-19, D-41 and DX. Besides these, reliance was also placed upon the statements of the witnesses examined by the defendants.
12. Counsel for the respondents on the other hand argued that question of possession is a question of fact and so cannot be a matter of adjudication in a regular second appeal. Elaborating, the counsel argued that a Local Commissioner was appointed by the Court to ascertain as to which of the parties was in possession at the spot. One Shri H. L. Sethi Advocate, was appointed by the Court who after visiting the spot submitted a report stating therein that the land in dispute had been ploughed and watered recently and that the same was ready for agricultural purposes. He further stated that this land was barbed on three sides. According to the counsel, to the report of the Local Commissioner no objection was filed by the defendants. In fact even no suggestion was put to that witness when he was examined by the plaintiffs. This being the position, the lower appellate Court rightly relied upon the report of the Local Commissioner and held that the plaintiffs are in possession of the site in dispute. According to the counsel, even the evidence fed by the defendants fairly supports the case set up by the plaintiffs. Hardev Singh DW.1, a functionary of the Municipal Corporation, has stated that there is no documentary evidence on record of the Corporation to prove that the land of the disputed Scheme was owned by Smt. Rajinder Kaur. In fact, this witness states that the scheme does not pertain to the land owned by plaintiffs and defendant No. 4. so, in view of this stand of DW1 the Court rightly came to the conclusion that no such Scheme was framed in respect of the land of the plaintiffs. Similarly, defendant failed to examine Shri S.P. Goyal, S.D.O. who is stated to have taken possession of the land in dispute on 29.10.1976. So, the best evidence i.e. the statement of Shri S.P. Goyal to prove whether in fact the possession of the disputed land was at any time taken by the Municipal Corporation has for reasons best known to the defendants been withheld. It is in the light of deposition of witnesses examined by the defendants as well as other documentary evidence, coupled with the statement of Local Commissioner, whose statement has remained un-questioned and the sworn. testimony of the plaintiffs that the Court came to the conclusion that the plaintiffs are in possession of the site in dispute at the spot. This being finding of fact is not vitiated in any manner and so the appeal deserves to be dismissed.
13. I have heard the learned counsel for the parties as well as perused the various documents referred to by the learned counsel for the parties as well as statement of the witnesses, the reference to which was made by the respective counsel during the arguments. Primarily, the case of the appellants proceeds on the premise that Smt. Rajinder Kaur, mother of the plaintiffs, approached the Municipal Corporation for according approval to a Scheme prepared way back in the year 1970. A resolution was passed by the Municipal Corporation and the matter was referred to the Government of Punjab for necessary approval in terms of Section 192 subsection (3) of the Punjab Municipal Act, 1911. This Scheme pertains to an area known as No. 6 Part 3A, Ludhiana. It is in pursuance to the sanction accorded that the area was developed leaving almost 20% of area for laying out of streets/parks etc. The present dispute pertains to an area which, according to defendant-Municipal Corporation was left out as a park, whereas plaintiffs claim themselves to be in its exclusive possession being owner. According to the defendants Smt. Rajinder Kaur, mother of the plaintiffs, who was also their general attorney tacitly agreed for leaving the land in dispute to be used as a park for the inhabitants of the area. So, according to the counsel, even if there is no direct evidence as to the consent of the plaintiffs yet it would be appropriate to infer that the plaintiffs had no objection for leaving this area as a park.
14. Such an argument does not appeal to reason. There is no denying the fact that plaintiffs along with Smt. Rajinder Kaur owned a joint holding. So, each one of these persons had exclusive right to manage the same to the exclusion of others. A perusal of various documents adduced in evidence by the defendants no way leads to the conclusion that the plaintiffs consented to any such arrangement or even authorised Smt. Rajinder Kaur permitting her to give up their claim in the suit property. Even the statement of Shri Hardev Singh DW1 belies the stand set up by the defendants-appellants. According to this witness the so called Scheme does not pertain to the land owned by plaintiffs and defendant No. 4. There is no valid reason to disbelieve a witness who has deposed on the basis of official record maintained by the Municipal Corporation. It would be thus reasonable to infer that Scheme was not conceived with regard to the land of the plaintiffs. Otherwise too, reference made by the learned counsel for the appellants to the development Scheme is quite extraneous to the point at issue. Defendants have not claimed any issue with regard to Scheme, if any, approved and its ambit. Copy of the Development Scheme or even proposed Scheme has not been placed on record. Precisely put, the dispute merely relates to determining the nature of property and its possession. According to the defendants one Shri S.P. Goyal visited the spot on 29.10.1976 and took possession of the same by putting barbed fencing by affixing of angle iron etc. For reasons best known to the defendants this witness has not been examined. In the absence of this material witness no reliance can be placed upon some writing on an official file stating that possession has been taken by affixing angle iron and fencing the same by barbed wires. On the other hand to prove their possession the plaintiffs made a prayer for appointment of a Local Commissioner before the trial Court.
Shri H.L. Sethi, Advocate was appointed to visit the spot and report as to the nature of the property and its possession. It is in pursuance to the direction of the Court that Shri Sethi visited the spot on 21.11.1976 and observed that the land had been ploughed and watered and that the same had also been fenced on three sides. Admittedly, no objection has been filed to this report of the Local Commissioner. Lower Appellate Court keeping in view the sworn testimony of the witnesses and especially that no objection has been filed to the report, coupled with other oral evidence on record, came to the conclusion that plaintiffs are in possession of the land at the spot. I find no infirmity in this finding of the lower appellate Court.
15. Appellants also cannot derive any support from the photographs marked ‘A’ and ‘B’. Firstly, these documents have not been proved according to law and secondly even the exact location of the area i.e. whether same relates to disputed land has not been proved beyond doubt. In any case mere children of locality temporarily making use of vacant site for playing cannot be said to take away the possessory rights of the owner of the property.
Since there is no document on record to prove that in fact any such development Scheme was envisaged with regard to the disputed property, I am of the view that the Court rightly came to the conclusion that no such Scheme was framed in respect of the property in dispute. Since the plaintiffs are admittedly owners of the property and as per evidence on record have also been proved to be in possession of the property, the judgment and decree passed by the Court below is perfectly legal and just. Thus, finding no merit in the appeal the same is dismissed.
No order as to costs.