RSA No.4032 of 2008 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
R.S.A. No.4032 of 2008
Date of Decision: 8 - 8 - 2011
Phool Singh and another ....Appellants
v.
Amar Singh and others ....Respondents
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.N.S.Shekhawat, Advocate
for the appellants.
Mr.R.P.S.Ahluwalia, Advocate
for the respondents.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
The present Regular Second Appeal has been filed by the
defendants to the suit. Respondent-plaintiff Amar Singh had instituted a
suit for permanent injunction praying that defendants be restrained from
interfering in any manner in ownership and possession of property marked
ABCDEFJ, detail and description of which has been given in head note of
the plaint.
The trial Court had decreed the suit and granted the relief of
permanent injunction, aggrieved against which the defendants had filed an
appeal. The lower Appellate Court while partly allowing the appeal, in para
11 of its judgment has held as under:-
RSA No.4032 of 2008 [2]
“11. It is clear that Khasra No.64 is claimed to be owned by
plaintiff in view of his replication but there is no revenue
record to support that plaintiff is owner in possession of
khasra no.64. But in the DW1 Amar Singh defendants admits
the possession of plaintiff over this property. So, plaintiff on
the basis of possession, can take the injunction. However,
defendants have every right to make opening in his own wall.
However, the drain has already been constructed long time
back and the water of bathroom is being discharged through
underground pipe line and naturally in case of opening made
by defendant nos.1 & 2, the plaintiff has right to obstruct the
same by constructing his own wall. However, defendants
cannot encroach upon the suit property as the plaintiff is in
possession over the same. In view of this, findings recorded by
learned trial Court is partly reversed and this issue is partly
decided in favour of plaintiff and against the defendants.”
Counsel for the appellant-defendants states that once the lower
Appellate Court has held that there is no revenue record from which
possession of the respondent-plaintiff is discernible, the Court relied upon
the admission of the appellant-defendants to state that respondent-plaintiff
is in possession.
Counsel for the parties are in agreement that it has been
wrongly recorded that admission was made by Amar Singh DW1. Rather it
is stated that Amar Singh had appeared as PW4.
I have also perused the judgment of the lower Appellate Court.
In the concluding portion of para 10 of the judgment, it has been observed
as under:-
“…..However, the possession of plaintiff is proved over this
portion and defendants have never raised construction over
this portion despite the compromise in the year 1957.”
The trial Court held that compromise of 1957 cannot be taken into
RSA No.4032 of 2008 [3]
consideration as no pleadings to this effect were made. Thus, the findings
given by the lower Appellate Court cannot be reconciled.
Hence, the present appeal is allowed. The judgment of the
lower Appellate Court is set aside and the matter is remanded back to the
lower appellate Court to decide the same afresh after hearing counsel for the
parties. It shall decide the appeal within three months from the date of
appearance of the parties. They are directed to appear before the lower
Appellate Court on 30.8.2011.
( KANWALJIT SINGH AHLUWALIA )
August 8, 2011. JUDGE
RC