R.S.A.No. 3793 of 2009 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3793 of 2009 (O&M)
Date of decision: 23.10.2009
Satbir Singh
......Appellant
Versus
Jagbir Singh @ Jaibir Singh
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Shailendra Jain, Advocate,
for the appellant.
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SABINA, J.
Plaintiff Jugbir Singh @ Jaibir Singh filed a suit for
permanent injunction which was decreed by the Additional Civil
Judge (Sr.Divn.), Gurgaon vide judgment and decree dated
24.9.2007. In appeal, filed by defendant, the said judgment and
decree were upheld by the Additional District Judge, Gurgaon vide
judgment and decree dated 31.3.2008. Hence, the present appeal
by the defendant.
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“2. The plaintiff was absolute owner in possession
of land shown in yellow and red colours marked by letters
R.S.A.No. 3793 of 2009 (O&M) 2BEFG in the site plan attached with the plaint, part and
parcel of Khasra No.7289/2923/3 of Mauza, Gurgaon,
Tehsil and District Gurgaon, now part of Laxman Vihar,
Gurgaon, bounded as under:-
East: Land of other persons
West: 25ft. Rasta out of the land of the plaintiffs
bearing Khasra No.7289/2923/3 and then land
of other persons.
North: Land of defendant bearing khasra No.7289/
2923/2 and thereafter land of Baljeet Singh
forming part of khasra No.7289/2922/2.
South: Land of other persons.
The plaintiff had sold some of his land after
providing private rasta of 18′ wide as shown in the site
plan and retained 12′ wide strip of land shown in red
colour marked by letters ABCD towards the North of the
said rasta of 18 in order to sell the same after carbing out
plots therefrom for the purposes of shops having depth
12′. the land shown in yellow and red colours in the site
plan was received by the plaintiff in mutual arrangement
of partition effected on 1.10.1995 followed by a decree
dated 4.12.1995 passed by the Court of Shri R.K.Sharma,
the then learned Additional Senior Sub Judge, Gurgaon in
suit No.1267 of 1995. The said partition was effected
between the parties to the suit and another brother Baljit
Singh. The said partition was subsequently recorded in
the revenue record vide mutation No.18408 sanctioned
R.S.A.No. 3793 of 2009 (O&M) 3on 20.3.1996. The defendant is the real brother of the
plaintiff but the defendant was a forceful person and had
no respect for law. The defendant wanted to grab the red
coloured portion shown by letters ABCD in the site plan
and wanted to include the same in his own land falling
towards its North. The defendant was well aware that the
red coloured portion was part and parcel of Khasra
No.7289/2923/3 and was possessed by the plaintiff. The
defendant even wanted to alienate the said land. With
these allegations, the plaintiff sought a decree for
declaration that he was absolute owner in possession of
land shown in yellow and red colour in the site plan and
the defendant had no concerned with the same and
further sought a decree for permanent injunction for
restraining the defendant from encroaching upon the red
coloured portion shown by letters ABCD in the site plan
and from alienating the same and from raising any sort of
construction on the said land.
3. The defendant contested the suit and filed
written statement in which preliminary objections were
raised that the plaintiff had concealed the material facts
from the Court, that the plaintiff was estopped by his own
act and conduct from filing the present suit, that the suit
was not maintainable, that the plaintiff had no cause of
R.S.A.No. 3793 of 2009 (O&M) 4action, that the plaintiff had no locus standi to file the suit,
that the suit was bad for non-joinder of Smt.Pushpa
Rathor other vendees as necessary parties, that the suit
was not properly valued for the purposes of court fee and
jurisdiction. It was further pleaded that the plaintff, the
defendant and their third brother Baljit Singh were joint
owners of Khasra No.2922 and 2923 and various other
properties, which were partitioned amongst them by a
family settlement and compromise, which was duly
acknowledged vide decree dated 4.12.1985 wherein the
defendant was allotted area measuring 289 ¼ x 84′ out of
khasra No.2923 as shown in the compromise as well as
in the site plan attached with the compromise dated
29.11.1995, which was part of judgment and decree
dated 4.12.1995. It was further pleaded that the plaintiff
was allotted similar area out of Khasra No.2923 and their
third brother was allotted area of Khasra No.2922 and
since then the defendant was exclusive owner in
possession of the portion so allotted to him out of Khasra
No.2923 and the defendant had also sold some portion
out of his own share of land and several houses were in
existence constructed by vendees of the defendant. It
was further pleaded by the defendant had he had never
sold any portion of the plaintiff, rather the plaintiff had sold
R.S.A.No. 3793 of 2009 (O&M) 5various plots to various persons out of the area allotted to
him and he had constructed a pukhta road touching the
land allotted to the defendant and several houses were in
existence belonging to the vendees of the plaintiff and the
doors of the said houses opened and road constructed by
the plaintiff. It was alleged that the plaintiff had
constructed the road in his own portion to give rasta for
his vendees and the site plan given by the plaintiff did not
depict the actual state of affairs and wrong
measurements had been given in the same. It was
further alleged that a rasta was carved out towards the
west of the land allotted to the plaintiff, the defendant and
their brother Baljit Singh, which was still in existence. It
was further pleaded by the defendant that 18′ wide road
still existed in the portion allotted to the plaintiff vide
judgment and decree dated 4.12.1995 and the same was
left by him to give passage to his vendees and the said
road has become public property and the vendees of the
plaintiff as well as the defendant and the villagers at large
were using the said road to approach their respective
properties and houses and as such the plaintiff was not
the owner of the road as there was no land of the plaintiff
existing towards the North of the said road. On merits
also, it was pleaded that the plaintiff was neither the
R.S.A.No. 3793 of 2009 (O&M) 6owner nor in possession of Khasra in question. It was
pleaded that the plaintiff had already sold his entire share
and had carved out a rasta of 18′ and had constructed a
road, which was left for the vendees as no one was ready
to purchase the land without a rasta to it. It was denied
that there was 12′ strip belonging to the plaintiff adjoining
the said rasta of 18′. Refuting the allegations of the
plaintiff, the defendant prayed for the dismissal of the
suit.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is the absolute owner in
possession of land shown in yellow and red colours in the
site plan attached with the plaint? OPP
2. Whether the land portion shown in red colour
is part and parcel of khasra No.2923/3 belonging to the
plaintiff. If so to what effect? OPP
3. Whether the plaintiff is entitled for a decree for
permanent injunction as prayed for? OPP
4. Whether the road allotted to the plaintiff vide
judgment and decree dated 4.12.1995 still exists and
has become public property as alleged? OPD
5. Whether the suit is not maintainable in the
present form? OPD
R.S.A.No. 3793 of 2009 (O&M) 7
6. Whether the suit is bad for non-joinder of
necessary parties? OPD
7. Whether the plaintiff has no cause of action to
file the present suit? OPD
8. Whether the plaintiff has concealed true and
material facts from the Court? OPD
9. Whether the plaintiff has no locus standi to file
the present suit? OPD
10. Relief. “
After hearing learned counsel for the appellant, I am of
the opinion that the present appeal is devoid of any merit and
deserves dismissal.
The plaintiff filed a suit for permanent injunction that he
was absolute owner of the land in dispute forming part of Khasra
No.7289/2923/3 of Mauza Gurgaon village. In order to prove his
case, plaintiff examined ten witnesses.
Admittedly, the land was jointly owned by the parties and
their brother Baljit Singh and was partitioned on 1.10.1995 by mutual
arrangement followed by decree dated 4.12.1995 passed in civil suit
No.1267 of 1995. Mutation No.18408 on the basis of the said decree
was sanctioned on 20.3.1996. Admittedly, plaintiff and defendant
were given area measuring 289 ¾ x 84′ out of khasra No.2923. All
the three brothers were given equal shares. It has been observed by
the learned Additional District Judge in the impugned judgment that
R.S.A.No. 3793 of 2009 (O&M) 8
Baljit Singh got 289 ¾ x 84′ out of khasra No.7289/2922, defendant
Satbir Singh got the same area out of khasra No.2923/2 and the
plaintiff got the same area out of khasra No.2923/3. Defendant,
however, encroached upon the land belonging to his brother.
Admittedly, 18 feet wide passage was left on the Southern side of
khasra No.2923/2. It has been observed by the learned Additional
District Judge in the impugned judgment that a perusal of judgment
dated 24.5.2006 passed in civil suit No.458 of 2000 revealed that
defendant Satbir Singh had sold more than his land comprised in
khasra No.2923/2 and the said sale deed in favour of Khem Chand
and Rakesh Kukreja was declared illegal, null and void.
Both the Courts below, after appreciating the evidence on
record, have given a finding of fact that the land shown in yellow and
red colour in site plan Ex.PW3/2 was owned and possessed by the
plaintiff and the passage left by the parties was being used by
general public. The said finding of fact, arrived at by the Courts
below, cannot be interfered with by this Court in appeal.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
October 23, 2009
anita