IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 2396 of 2008
Date of decision: 4th November, 2008
Rampal and another
... Appellants
Versus
Mukesh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ashok Kaushik, Advocate for the appellants.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Rampal and others have filed the present regular second
appeal. They had instituted a suit for permanent injunction with a prayer
that defendants be restrained permanently for making an illegal
encroachment and raising illegal and unauthorized construction. It was
pleaded in the suit that the plaintiffs are co-sharers/ co-owners and they
are in actual physical possession of the shamlat land described in the head
note of the plaint. It was further stated that there is an old ancestral Well in
the land in question and the same is worshipped as ‘Quian Wale Baba’ and
that the defendants should be restrained from raising the construction.
Notice was issued. Defendants appeared. They stated that
they are owners in possession of the suit land. They got the site plan
sanctioned from the Municipal Committee, Palwal and in pursuance of that,
they have raised construction and are residing there along with their
families. It was further stated that plaintiffs have no concern with the land.
Regular Second Appeal No.2396 of 2008 2
Defendant Nos. 4 and 5 filed separate written statements.
They raised preliminary objections regarding locus-standi and
maintainability of the suit. In alternative, they prayed that because of
adverse possession, they have become owners in possession of the
property. They stated that houses built there on the land are in existence
since 1977. They were having electric and water connections and the
house tax has been assessed by the Municipal Committee.
Gir Raj and Shiv Dayal appeared for plaintiff but their only
examination in-chief was recorded and thereafter, they never come forward
for cross-examination. Only evidence of Madan was recorded as PW-3 and
Rampal plaintiff as PW-4. Defendant examined 11 witnesses and also
tendered various documents.
The learned trial Court took into consideration the evidence of
Devi Ram Saini, House Tax Clerk DW-1, who proved that the defendants
have been assessed for the house tax and have been paying tax. It was
also taken into consideration that defendant No.2 Prem Chand has
installed an ‘Atta Chakki’. DW-10 Shiv Kumar appeared and proved electric
connection. Another witness was examined to prove water connection to
the houses. The trial Court held that when a person is already in
possession of the suit land, then suit for permanent injunction is not
maintainable against that person. It further held that it has not been proved
that the plaintiffs, being co-sharers, are in actual physical possession of the
disputed land.
Aggrieved against the same, appellants filed an appeal before
the lower appellate Court. The lower appellate Court concurred with the
findings of the trial Court. Lower appellate Court held that though, from the
revenue record, it is proved that the appellants are co-sharers/ proprietors
in the shamlat land, which comprises the suit land, the testimony of PW-3
and PW-4 Madan and Rampal have not been corroborated. It further
Regular Second Appeal No.2396 of 2008 3
noticed that they had admitted in the cross-examination that houses of
respondents-defendant, over the suit land, were existing before filing of the
suit.
Counsel for the appellants states that there was an alternative
prayer in the suit for grant of decree of possession. No evidence has been
led. The witnesses, whose examination in-chief was recorded, had not
come forward for cross-examination. Since there was a lack of evidence,
therefore this prayer was not pursued before the two courts below.
In view of the concurrent findings of fact recorded by the two
courts below, no interference is called for, especially when counsel for the
appellants has failed to formulate any substantial question of law.
Hence, there is no merit in the present appeal and the same is
dismissed.
[KANWALJIT SINGH AHLUWALIA]
JUDGE
November 04, 2008
rps