R.S.A. No. 4237 of 2008 [ 1]
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 4237 of 2008 (O&M)
Date of decision: 24.12.2008
Yashwinder Singh and another
..Appellants
v.
Union of India and others
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Yashwinder Singh, Advocate for the appellants.
..
Rajesh Bindal J.
The plaintiffs are in second appeal before this Court against
concurrent finding of fact by both the courts below, whereby the suit filed by them
for declaration and injunction was dismissed.
Briefly, the facts are that the plaintiffs filed a suit seeking declaration
to the effect that they had become owners in possession of the suit land by way of
adverse possession and further injunction was sought against the respondents-
defendants from dispossessing the appellants-plaintiffs for making any
construction or interfering into peaceful possession thereof on the suit land. The
facts, as pleaded, are that the predecessors-in-interest of the appellants-plaintiffs
had established village Ramgarh about 200 years ago. A fort was constructed
there. Father of the plaintiffs, namely, Raj Kumar Singh, who lived on eastern and
northern side of the site in dispute had adverse possession over the suit land for
the last more than 30 years and before him, his ancestors were in possession. In
fact, they owned considerable land in village Ramgarh, some of which was
acquired in 1992 and father of the appellants-plaintiffs, being owner of substantial
land in the village, had share in jumla mushtarka malkan property as well. The
suit came to be filed as respondents-defendants No.5 to 8 along with their family
members had started digging foundation for construction of shops on the site in
dispute. Both the courts below found that the appellants-plaintiffs had not been
able to prove their ownership and possession over the suit land. As far as claim
regarding ownership on the basis of adverse possession is concerned, the same was
not found to be maintainable in view of the judgment of this Court in Bhim Singh
and others v. Zile Singh and others, 2006(3) CCC 479 as the appellants had not
R.S.A. No. 4237 of 2008 [ 2]
been able to establish their possession on the suit land, the injunction was also
denied. The court also found that the claim set up by respondents-defendants No.5
to 8 that they were in possession of the suit land was also totally misconceived as
nothing could be produced on record to substantiate that plea.
Learned counsel for the appellants-plaintiffs submitted that even if
the suit for being declared as owners of the suit land on the basis of adverse
possession was not maintainable in view of the judgment of this Court in Bhim
Singh’s case (supra), still the injunction prayed for could very well be granted, as
the appellants-plaintiffs were in possession of the suit land as it was situated in the
form of a khud outside the house of the appellants, which was just a kind of
protection to their residential property, as no one could enter from that side.
Having heard learned counsel for the appellants, I do not find any
merit in the submissions made. Both the courts below did not find merit in the
submissions made by the appellants for the reason that no evidence worth
consideration was produced on record to show the ownership or the possession of
the land. It was merely a site plan, which was produced on record, which cannot be
said to be a document of title or possession. While raising the plea of adverse
possession, the appellants did not disclose as to who is the owner of the property
and how their possession is continuous and hostile to the knowledge of owner of
the property and the society as a whole. Still further, no evidence was led to
substantiate the plea raised in the plaint that the property was part of jumla
mushtarka malkan of the village. Rather, in his cross-examination, appellant No.2-
Jayender Singh had to concede that he was not in knowledge of the fact as to
whether the disputed land was shamlat deh or not. Not only this, even the claim
set up by respondents-defendants No.5 to 8 that in fact they were in possession of
the suit property was also found to be equally hollow as no evidence in support
thereof was produced. In fact, the courts below found that it was simplicitor a case
where both the parties wanted to encroach upon the land. Keeping the aforesaid
facts in view, where the appellants-plaintiffs had not been able to substantiate the
plea raised by them before the courts below by leading any cogent evidence, I do
not find that any illegality has been committed in dismissing the suit and the
appeal. Even the prayer for injunction only also could not be allowed in the
absence of any convincing evidence to show the possession over the property.
At this stage, learned counsel for the appellants-plaintiffs submitted
that in fact, in case this khud just outside the house of the appellants is filled up,
that will make their house insecure. I do not find any merit even in this
submission. Any one, who is owner of the property, can very well raise a boundary
R.S.A. No. 4237 of 2008 [ 3]
wall to protect the same, subject to the condition that the same does not violate
rights of others.
The findings recorded by both the courts below are plain and simple
findings of fact giving rise to no question of law, much less a substantial question
of law.
Accordingly, the present appeal is dismissed.
(Rajesh Bindal)
Judge
24.12.2008
mk