Ramphal And Others vs Kirori Lal Yadav And Others on 4 August, 2009

R.S.A.No. 651 of 2009                                  {1}


In the High Court of Punjab and Haryana at Chandigarh


                               R.S.A.No. 651 of 2009
                               Date of Decision:August 04, 2009

Ramphal and others



                                           ---Appellants

                  versus

Kirori Lal Yadav and others


                                           ---Respondents

Coram:      HON'BLE MRS. JUSTICE SABINA

                ***

Present:    Mr. R.S.Sangwan,Advocate,
            for the appellants

                  ***

SABINA J.

            Plaintiff-Kirori Lal Yadav had     filed a suit for permanent

injunction. Additional Civil Judge ( Senior Division), Mohindergarh vide

judgment and decree dated 16.2.2005 decreed the suit of the plaintiff.

Aggrieved by the same, defendants preferred an appeal and the same was

dismissed by Additional District Judge, Narnaul vide judgment and decree

dated 16.9.2008. Hence, the present appeal by the defendants.

The facts of the case as noticed by the learned Additional

District Judge, in paras 2 and 3 of its judgment read as under:-

“Briefly stated the facts of the present appeal are that the

plaintiff owner in possession as co-share of the suit dland

bearing Khasra No. 86/2 and 120/1 total measuring 1 kanal 11
R.S.A.No. 651 of 2009 {2}

marlas situated in revenue estate of village Dulana. The

defendants are their neighbourers and strong headed persons

and want to encroach upon the house and plot of the plaintiff.

They are going to encroach their land by raising

construction and have stored the building material for the

construction. They are also going to dug the foundation and

can raise construction at any movement. Plaintiffs asked

defendants not to raise any construction gut they refused to do

so. Hence, the present suit was filed by the plaintiffs against

defendants.

This suit was contested by the defendants on the

grounds that the plaintiff or other persons have got no right,

title or interest in the suit property nor the plaintiff is in

possession over the same . Revenue entries are in the name of

the plaintiff and are not correct according to the spot and

defendant is not bound by the said entries Defendant and his

sons owner of the suit property. They have constructed

Kachha/pucca houses as shown in the site plan marked by letter

ABCD. They have also constructed boundary wall and spent a

sum of Rs. 2/2.5 lacs in the construction of the house. No oral

exchange has been taken place. No oral exchange was signed

or thumb marked by the parties. Brij Lal, brother of the

plaintiff, is a Patwari and he has changed the revenue entries

and got sanctioned mutation in collusion with the revenue

authorities. No such exchange was ever taken place and never

acted upon. The said exchange deed is merely paper
R.S.A.No. 651 of 2009 {3}

transactions and defendants are not bound by the same. The

plaintiff never entered in possession of this land and the

defendant never tried to take forcible possession of the suit

land. In fact, the defendants are owners of the suit land and

have prayed for dismissal of the present suit.”

On the pleadings of the parties, trial court framed the following

issues:-

“(1)Whether the plaintiff is entitled to the relief of injunction as

prayed for ? OPP

(2)Whether the plaintiff has no locus standi to file the suit?

OPD

(3)Whether the suit is not maintainable in the present form?

OPD

(4)Whether the plaintiff is estopped from filing the suit due to

his act and conduct? OPD

(5)Whether the plaintiff has no cause of action to file the suit?

OPD

(6)Whether the suit is time-barred? OPD

(7)Whether the defendant is entitled to special costs under

Section 35-A CPC? OPD

(8)Relief

After hearing learned counsel for the appellant, I am of the

opinion that the present appeal deserves to be dismissed.

Plaintiff had filed a suit for permanent injunction seeking a

direction that defendants be restrained from interfering in his peaceful

possession with regard to Khasra No. 86Rect. No. (0-10), 120Rect. No. 1
R.S.A.No. 651 of 2009 {4}

(1-1) Kila 2 total measuring 1 kanal 11 marlas situated in village Dulana

Tehsil and District Mohindergarh. In order to prove his case, plaintiff

proved on record the mutation which was sanctioned in his favour with

regard to the oral exchange effected in his favour with regard to the property

in dispute. The mutation was sanctioned on 31.8.1977 but the same was

never challenged by the defendants. Thereafter, as per the revenue record,

plaintiff was in possession of the suit land. Defendants had also failed to

establish that since the value of the property was more than Rs. 100/- at that

time, no oral exchange could be effected between the parties. Since the oral

exchange effected between the parties had been duly acted upon and

mutation was sanctioned in favour of the plaintiff with regard to the suit

land and as per the revenue record, the plaintiff was in possession of the

suit land, Courts below had rightly decreed the suit of the plaintiff for

permanent injunction. Learned Additional District Judge in his judgment

has further observed that the exchange in question was done with

defendant-Kehar Singh and he got equal land in the same revenue estate

bearing Khasra No. 85 min.

No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.

(SABINA)
JUDGE

August 04, 2009
PARAMJIT