R.S.A. No. 17 of 2009 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 17 of 2009 (O&M)
Date of Decision : 07.01.2009
Ram Rakha
....Appellant
Versus
S.H.O. Of Police Station, Shahbad Markanda and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr. Ravinder Malik Ravi, Advocate
for the appellant.
.....
MAHESH GROVER, J.
This appeal is directed against the judgments of the
learned trial Court dated 31.7.2006 and that of the learned Lower
Appellate Court dated 8.9.2008.
The brief facts of the case are that the appellant had filed a
civil suit for permanent injunction which was later on converted into
a suit for mandatory injunction seeking a direction to the defendants
to demolish the wall from point M to N in an open public street as
reflected in the site plan attached to the plaint and restore the said
street for the use of the appellant as well as general public from east
to west. It was the case of the appellant that he is occupying a
residential house on a plot of 20 feet x 50 feet since 1984 after getting
the site plan sanctioned from the Municipal Committee. It was
R.S.A. No. 17 of 2009 (O&M) -2-
pleaded that he is in continuous, open and hostile possession of the
suit property to the knowledge of the general public. It was further
pleaded that respondents No.3 and 4 had purchased the property
adjacent to the suit property in southern-eastern side from one Jaspal
Singh son of Sulakhan Singh on the basis of fabricated sale deed
purportedly executed in their favour and with the assistance of
respondent No.1 they wanted to encroach upon the suit property by
demolishing the walls which are in existence since 1984. It was
further alleged that respondents No.3 and 4 accompanied by the
police officials visited the spot on 16.4.2002 and made an effort to
demolish and occupy the street in question for the sole benefit of
respondents No.3 and 4. It was alleged that respondents No.3 and 4
have blocked the southern public street at point MN during the
pendency of the suit and accordingly the prayer for demolishing of
the wall was made.
Respondents No.1 and 2 contested the suit and alleged
that no cause of action had arisen in favour of the appellant and that
the police help had been provided on the request of the Estate Officer,
Haryana Urban Development Authority, Kurukshetra vide his letter
dated 14.3.2002, as there was encroachment made by the appellant on
the property of respondents No.3 and 4 which required removal.
Respondents No.3 and 4 pleaded that the appellant was
estopped by his own act and conduct from filing the suit as earlier on
19.12.2000 he had given in writing and left the encroached portion
i.e. 20’5″ x 7′ of Plot No.103-P and promised to remove the wall in
the encroached portion or in the alternative left it on the HUDA to
R.S.A. No. 17 of 2009 (O&M) -3-
remove the same. The appellant did not, however, remove the wall.
The possession of the plot was given by the appellant to the previous
owner Jaspal Singh on 19.12.2000, but the wall remained intact.
Respondents No.3 and 4 had purchased the property from Jaspal
Singh.
The learned trial Court on the pleadings of the parties
framed the following issues :-
1. Whether the plaintiff is entitled to relief of
permanent injunction as prayed for? OPP
2. Whether the plaintiff is entitled to relief of
mandatory injunction as prayed for? OPP
3. Whether the suit is bad for non-joinder and mis-
joinder of necessary parties?OPD
4. Whether the suit is not maintainable in its present
form? OPD
5. Relief.
After appraisal of the evidence before it, the learned trial
Court dismissed the suit of the appellant.
In appeal, the findings were affirmed.
Learned counsel for the appellant contended that there
was in existence a public street on which a wall had been constructed
by respondents No.3 and 4 which required to be removed and that the
findings of the courts below are perverse.
After hearing the learned counsel for the appellant and
perusing the record, I am of the opinion that the contention raised by
the learned counsel for the appellant is without any merit. Prior to the
R.S.A. No. 17 of 2009 (O&M) -4-
filing of the present suit the appellant had filed a suit for permanent
injunction against the Haryana Urban Development Authority on
1.12.2000 and during the pendency of that suit the appellant had
vacated the encroached portion and also promised to remove the wall
raised by him on the said portion. The suit property is the same, as the
one which the appellant had given to Jaspal Singh from whom
respondents No.3 and 4 have purchased it. The earlier suit was
dismissed as withdrawn on 16.4.2002. In the present suit these facts
were cleverly concealed by the appellant. Both the courts came to the
conclusion that the earlier commitment given by the appellant before
the court by way of Ex.D2 was to the effect that the appellant was
required to remove the wall but apparently he has resiled from the
undertaking and failed to remove the same and rather went on to file
a separate suit i.e. the instant proceedings which is clearly an abuse of
the process of law. Both the courts have recorded a consistent and
concurrent finding of fact. No substantial question of law arises in the
present appeal. Therefore, the same is without any merit and requires
to be dismissed. Moreover, the appeal is also barred by unexplained
delay of 28 days.
Before parting with the order, this Court is of the
considered opinion that the appellant has abused the process of law
and tried to defeat the undertaking which was given in the prior suit,
therefore the present appeal is dismissed with costs of Rs.10,000/- to
be deposited before the State Legal Services Authority, Haryana
R.S.A. No. 17 of 2009 (O&M) -5-
within a period of three weeks from today.
7.1.2009 (MAHESH GROVER)
JUDGE
dss
