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. **** 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) 2 BEFG 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) 3 on 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) 4 action, 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) 5 various 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) 6 owner 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