R.S.A.No.638 of 2007(O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No.638 of 2007(O&M)
Date of Decision:August 03, 2009
Sultan
---Appellant
versus
Ganesh Prasad and others
---Respondents
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr. Sanjay Mittal,Advocate,
for the appellant
Mr.Vivek Singla, Advocate,
for respondents No. 1 to 7
***
SABINA J.
Plaintiffs had filed a suit seeking permanent injunction against
the defendants restraining them from interfering in the suit property.
Additional Civil Judge (Senior Division), Narnaul, vide judgment and
decree dated 28.2.2001 dismissed the suit of the plaintiffs. Aggrieved by
the same, plaintiffs preferred an appeal and the same was dismissed by
Additional District Judge, Narnaul vide judgment and decree dated
11.8.2006 alongwith the cross objection filed by the defendant No. 1 Sultan.
Hence, the present appeal by defendant No. 1-Sultan.
R.S.A.No.638 of 2007(O&M) {2}
The facts of the case as noticed by the learned Additional
District Judge, in paras 2 to 4 of its judgment read as under:-
“Plaintiffs are in possession of the suit property for the last
25/30 years. It has been pleaded that the possession of the
plaintiffs/appellants is opened and declared one and in the
knowledge of the defendants/respondents. Plaintiffs have
raised construction in the suit property. They are residing and
also running business in the suit property. Plaintiffs/appellant
have taken electric connection No. F 1132 in his name.
Defendants/respondents No. 1, 3 and 4 have formed a group
and they are adamant to grab the property of the plaintiffs. It
has been also pleaded that defendant No. 2 through defendant
No. 3 had filed a suit against the son of the plaintiff and when
the said suit was contested by the son of the plaintiff, defendant
No. 2 has withdrawn the said suit and the said suit was
dismissed on 3.6.1982. Despite that the defendants tried to
grab the property of the plaintiff and defendant No. 1 filed a
false suit against the defendants No. 2 to 4. It has been pleaded
that the rent petition titled as Sultan Vs. Sangeeta Handloom
Co-operative industrial society was decided by the court of Sh.
M.M.Sharma the then rent Controller vide judgment dated
5.6.1990. Defendant No. 1 contained ex parte ejectment order
against the defendants No. 2 to 4 in the said rent petition, titled
as Sultan Vs. Sangeeta Handloom. It has been further pleaded
that the order dated 5.6.1990 passed in rent petition titled as
Sultan Vs. Sangeeta Handloom is not binding on the plaintiff
R.S.A.No.638 of 2007(O&M) {3}
and defendant No. 1 has no right to interfere in the possession
of the plaintiff over the suit property. It has been also pleaded
that defendants No. 2 to 4 were not tenants under defendant No.
1 as alleged in the rent petition titled as Sultan Vs. Sangeeta
Handloom. It has been pleaded that the judgment of rent
petition titled as Sultan vs. Sangeeta Handloom decided on
5.6.1990 is not binding on the plaintiffs. Defendants have got
no concern with the suit property and plaintiffs are in
possession over the suit property as owner. It has been pleaded
that after getting knowledge about the decision of the rent
petition, plaintiffs filed another suit for seeking permanent
injunction but he has withdrawn the said suit as description of
the suit land was wrongly mentioned in the said suit. Plaintiffs
claimed that defendants have no right to interfere in his
possession over the suit property fully detailed in the head note
of the plaint.
On notice defendant/respondent No. 1 filed written
statement along with counter-claim. Defendant No. 1 pleaded
that plaintiff is neither owner nor in possession of the suit
property. It has been pleaded that plaintiff had earlier filed a
suit titled as Bal Kishan Vs. sultan on 1.9.1990 and it was
mentioned in that suit that suit property is Muslim Evacuee
property and was purchased by his father about 21/22 years
back from custodian. A site plan dated 30.8.1990 prepared by
Rajender Kumar Saini draftsman was also produced along with
plaint of that earlier suit. It has been pleaded that in the
R.S.A.No.638 of 2007(O&M) {4}
present suit plaintiff has also added the land, existing towards
the eastern side of the house of Panna Lal. Defendant No. 1
also pleaded that the father of the plaintiff purchased MEP No.
928 from custodian and the area of said property was 200
square yards and two rooms and an stair case was in existence
at the time of purchasing of MEP No. 928. It has been pleaded
that the land was rented out through Ganesh Prasad plaintiff at
the rate of Rs. 50/- per month and Ganesh Prasad committed
embezzlement and due to that reason he was removed from the
post of Treasurer of the society. It has been pleaded that a rent
note dated 7.6.1980 was also executed by Sangeeta Handloom
in favour of defendant No. 1. It has been claimed that Sangeeta
Handloom Co-operativbe Society w3as working in the property
till 27.8.1990. However, it has been admitted that Ganesh
Prasad got installed electric connection in the said property
after taking the said property on rent and said electric
connection was in existence till the defendant No. 1 got
possession of the property through court. Rest of the
allegations have been denied.
Defendants No. 2 and 3 filed their separate written
statement in which it has been pleaded that plaintiff is neither
owner nor in possession of the suit property except MEP No.
928 measuring 200 square yards which was purchased by the
father of the plaintiff from custodian. It has been pleaded that
Sangeeta Handloom Co-operative Society was in possession
of the disputed property as tenant. It has been further pleaded
R.S.A.No.638 of 2007(O&M) {5}
that Sangeeta Handloom Co-operative & Industrial society took
the land measuring 1120 square yards on rent through its
treasurer on 18.3.1980. It has been pleaded that a suit was
filed by Sangeeta Handloom Co-operative Society against
Ganesh Prasad and later on suit was withdrawn as Ganesh
Prasad stopped interfering in the work of the society. It has
been admitted that defendant No. 1 filed a rent petition against
Sangeeta Handloom Society and order of ejectment was passed
in the said rent petition on 5.6.90. It has been pleaded that
plaintiff never remained in possession over the disputed
property from June, 1979 up to 27.8.1990. Defendants prayed
for dismissal of the suit.”
On the pleadings of the parties, trial court framed the following
issues:-
“(1)Whether the plaintiff is owner in possession of the property
in dispute? OPP
(2)Whether the defendant is restraining user of the plaintiff
with respect to that? OPP
(3)Whether the suit is not maintainable? OPD
(4)Whether the plaintiff has no locus-standi to file the suit?
OPD
(5)Relief.
After hearing learned counsel for the appellant, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiffs had filed a suit for permanent injunction against the
defendants for restraining them from interfering in the suit property.
R.S.A.No.638 of 2007(O&M) {6}
Defendant No. 1 filed a counter claim claiming that he was owner in
possession of the part of the suit property measuring 1120 square yards on
the ground that he had taken possession of the same from Sangeeta
Handloom Co-operative Industrial Society hereinafter referred to as “the
Society”) in pursuance of execution of ejectment order dated 5.6.1990. It
has been observed by the learned District Judge in its judgment that the suit
was filed by the Society against Ganesh Prashad and the same was
dismissed as withdrawn vide order dated 3.6.1982(Ex. D.16). In the written
statement filed by Ganesh Prasad (Ex. D-12), it was averred that he was in
possession of the suit property and it was also stated that the property which
was in possession of the Society was not taken on rent from defendant No. 1
-Sultan in the present suit. It was admitted that the society was started about
1/1 ½ years back and was working towards southern side of the house of
Bal Kishan. It was further pleaded in the written statement that the suit
property was purchased by Duli Chand, grand father of Ganesh Prasad from
custodian and he was not bound by the forged rent note executed between
the Society and Sultan Singh-defendant No. 1. Thus, Ganesh Prasad had
denied the rent note and ownership of Sultan Singh-defendant No. 1 over
the suit property. The said suit was dismissed as withdrawn. Rent Note
Ex. D-4 dated 7.6.1980 was not executed by Bal Kishan or his son Ganesh
Prasad- defendant No. 1 claiming ownership over the disputed portion of
the suit property on the basis of rent note Ex. D-4.
It has been further observed by the learned Addl. District Judge
that defendant No. 1 Sultan Singh filed an ejectment petition against the
Society and the said petition was decided in favour of defendant No. 1 ex
parte. As per defendant No. 1, he had taken possession of the disputed
R.S.A.No.638 of 2007(O&M) {7}
property in pursuance of warrant of possession Ex. D-7 dated 27.8.1990 and
since then he was in possession of the suit property. However, from the
report of Local Commissioner, it was found that Chhappar No. 1 mentioned
in the report of Local Commissioner was the same disputed Chhappar , with
regard to which possession was delivered to defendant No.1 by bailiff on
27.8.1990. Some articles were also found lying in the Chhappar. As per
the report of the bailiff, lock of Sultan Singh was put on the Chhappar.
When the Local Commissioner visited the site on 15.3.1991, the said lock
was not found at the Chhappar. In fact, lock was lying open. In these
circumstances learned Additional District Judge had observed that on
comparison of the report of the Local Commissioner as well as the warrant
of possession, present appellant was not found in possession of the property
in dispute at the time of filing of the suit. Since the plaintiff was not a party
to the ejectment proceedings, he could not be held to be bound by the
ejectment order. It can be inferred that the ejectment proceedings were
collusive and not binding on the plaintiff.
Learned counsel for the appellant has failed to rebut the factual
observations made by learned Additional District Judge. In these
circumstances, since the appellant was not found in possession of the suit
land on the date of filing of the suit, his counter claim was rightly dismissed.
No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
August 03, 2009
PARAMJIT