IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.5845 of 2003 Date of Decision: 18.5.2009 The Managing Committee, Lyallpur Khalsa Senior Secondary School, Nakodar Road, Jalandhar. ....... Appellant through Shri Hemant Saini, Advocate. Versus Baij Nath Yadav (since deceased) and others. ....... Respondents through Shri Gaurav Sharma,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgments and decrees dated 29.5.2002 and 26.8.2003 passed respectively by the Civil Judge (Junior Division), Jalandhar (hereinafter described as `the trial Court') and the Additional District Judge, Jalandhar (referred to hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiff- appellant were dismissed. The appellant had filed a suit for mandatory injunction against the defendants-respondents directing them to hand over the possession of the property comprised in khasra nos. 3107, 3108 and 3109 situated within the premises of Lyallpur Khalsa Senior Secondary School, Nakodar Road, R.S.A.No.5845 of 2003 -2- .... Jalandhar City, fully detailed in the head note of the plaint (hereinafter called as `the suit property'). The facts:- Baij Nath- respondent no.1 was working as Helper in the City High School at Lyallpur and after partition of the country, that school shifted to Jalandhar and started functioning under the name and style of Lyallpur Khalsa High School, Nakodar Road, Jalandhar and presently, it is known as Lyallpur Khalsa Senior Secondary School (for short, `the School'). It is being managed by a Society registered under the Societies Registration Act and Shri Prem Singh, Advocate was authorised to file the instant suit vide resolution dated 27.11.1997 being its Manager. When the School started working at Jalandhar in the year 1948, it was housed in a Mulsim property bearing No.WG-579 at Suraj Ganj, Jalandhar. Respondent no.1 applied for fresh employment in the School and on the basis of his past association, he was appointed as Chowkidar with effect from 1.6.1953. the School, being a displaced institution, filed a claim with the government for providing the requisite land, grounds, buildings etc. and according to notification dated 19.3.1956, the land measuring 5.18 acres was allotted to it, which was fully detailed in the plaint. After payment of the total charges of the land amounting to Rs.10914.9 annas and six payees, the said land was transferred in the name of the School. Thereafter, two tubewells were installed in the ground in order to maintain the same. Respondent no.1 was provided with two kucha kothas for accommodating him and family in order to look after the land of the School and to help the management in R.S.A.No.5845 of 2003 -3- .... maintaining the ground and also to look after the tubewells. Later on, some rooms were constructed by the School and ultimately, it shifted to the land in question in the year 1965. Respondent no.1 continued to be in the service of the School till 9.4.1985 when he attained the age of superannuation. On his applications, he was given three extensions of one year each and finally, he was retired from service on 9.4.1988. The accommodation constructed in khasra nos. 3107, 3108 and 3109 was provided to respondent no.1 was the official accommodation of the School which was attached to it and he had been keeping the same as a licencee on account of his service. After retirement, he represented that his son- Shiv Sagar Yadav, respondent no.3 may be appointed as Chowkidar or Clerk in the School and he & family may be allowed to continue in possession the official accommodation as a licencee. Considering the past service of respondent no.1, respondent no.3 was appointed in the same post with effect from 1.6.1988 and he & his family members were allowed to stay with him as the official accommodation was transferred in his name as per resolution no.1 dated 23.5.1988. In this way, respondent no.3 became the licencee under the School and his other relations also started living with him being family members. The private schools are provided with grant by the State of Punjab and respondent no.1 was entitled to the house rent allowance being an employee of the School, but he was not given the same because he was provided with the official accommodation free of charges and accordingly the requisite proforma was submitted to the government. In that proforma, it was clearly mentioned that respondent no.1 was living in the official R.S.A.No.5845 of 2003 -4- .... accommodation free of cost. Respondent no.3 had also sent the same proforma to the government and was not granted any house rent. Earlier the accommodation was kucha, but later on it was made pucca. The respondents filed a suit for declaration and permanent injunction claiming certain rights and denying the ownership of the School over khasra nos. 3107, 3108 and 3109. In the meantime, respondent no.3 submitted his resignation which was accepted vide resolution dated 19.12.1992. As respondent no.3 had resigned from service, his licence was cancelled and he was asked to hand over the vacant possession of the suit property, but he refused to do so, which gave cause of action to the School to file the instant suit for mandatory injunction in which it was prayed that the respondents be directed to hand over the suit property to it. Upon notice, the respondents appeared and filed their written statement contesting the suit. They took preliminary objections regarding maintainability, limitation, locus standi,non-joinder and mis-joinder of parties and valuation. It was also submitted that the instant suit was liable to be stayed under Section 10 of the C.P.C. as another suit filed by the School against the respondents was already pending regarding the same subject- matter. The respondents averred that they were in possession of khasra no.3110 which was an evacuee property. The factum of appointment respondent no.1 as Chowkidar in the School and thereafter of respondent no.3 was admitted, but other averments were denied. The establishment of the School was also admitted, but it was denied that Prem Singh was authorised to file the suit. It was pleaded that the respondents were in R.S.A.No.5845 of 2003 -5- .... possession of khasra no.3110 as per the notice issued by the Tehsildar (Sales) Jalandhar as well as the Nishandehi, which exists on the southern side of the School. It was further pleaded that a kucha kotha attached to the School was provided to respondent no.1 which had fallen down and, therefore, he had constructed his residential house in the evacuee land bearing khasra no.3110. Part of the land where the residential house of the respondents exists was stated to be belonging to one Kirpa Singh, who has since expired. It was denied that respondent no.1 or respondent no.3 ever resided in the suit property as licence. It was submitted that respondent no.3 had not resigned from service, but he was illegally and unlawfully removed and he had challenged his removal dated 25.1.1995. It was pleaded that since the respondents had constructed their residential houses in khasra no.3110, being an evacuee land belonging to the Central Government, the School had no right or title over the same. The dismissal of the suit was accordingly prayed for. In its replication, the School denied the averments of the respondents and reiterated those made in the plaint. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to the mandatory injunction as prayed for in the headnote of the plaint?OPP 2. Whether the present suit is liable to be stayed in view of preliminary objection No.1?OPD 3. Whether the present suit is not maintainable in the present form?OPD R.S.A.No.5845 of 2003 -6- .... 4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 5. Whether the present suit is within limitation?OPD 6. Whether the plaintiff has no locus standi to file the present suit?OPD 7. Whether the suit is bad for mis-joinder of parties and non- joinder of necessary parties?OPD 8. Relief. After appraisal of the entire evidence on record, the trial Court held that the respondents were in possession of khasra no.3110 and that the suit of the School could not be decreed as it had no concern with the same. It was further held that the School had failed to get any demarcation done from the revenue authorities. This finding was recorded with specific reference to judgment Exhibit-PX in which there was a mention of a demarcation report submitted in the suit for permanent injunction filed by the respondents regarding khasra nos. 3003, 1309, 1310, 3110 wherein it was found that the respondents were not in possession of khasra nos. 3107, 3108 and 3109 and thus, it was held that they had no cause of action to file the suit. The relevant observations made in judgment Exhibit-PX in paragraph 12 were extracted by the trial Court in its judgment, which read as under:- “Apparently, by the said suit the entire matter shall be finalised because in the said suit the defendant Lyallpur Khalsa High School shall take the possession after getting the land R.S.A.No.5845 of 2003 -7- .... demarcated from the revenue authorities which is their ownership.” It was, thus, concluded that the appellant had failed to establish by way of any evidence that the respondents were in possession of khasra nos. 3107, 3108 and 3109 and, therefore, the suit was dismissed. In appeal, the findings recorded by the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellant-School contended that the findings recorded by the Courts below are erroneous and deserve to be set aside. He submitted that there is complete misreading of evidence for the reason that it has come on record that the respondents were in possession of the suit property which belonged to the School. He argued that the Courts below have overlooked the cogent oral as well as documentary evidence on record. He, thus, contended that the following question of law arises for determination in this appeal:- “Whether the impugned judgments are the result of complete misreading of evidence and the findings recorded therein are perverse? On the other hand, learned counsel for the respondents contended that there is no ambiguity in the findings recorded by the Courts below. He submitted that the respondents are not in possession of khasra nos. 3107, 3108 and 3109 which has been admitted by the witnesses produced by the School and in this view of the matter, the findings recorded R.S.A.No.5845 of 2003 -8- .... by the Courts below can hardly be termed to be perverse. He, therefore, prayed that the appeal be dismissed. I have thoughtfully considered the rival contentions/ arguments and have carefully gone through the whole record. The entire case of the appellant is that the respondents are in possession of the suit property which belongs to the School. There is overwhelming evidence to show that the School is in possession of khasra nos. 3107, 3108 and 3109. Learned counsel for the appellant had laid much emphasis on the demarcation report dated 21.2.1994 to say that this has been ignored by the Courts below. However, a perusal of the same leaves no room for doubt that the property of the School is situated in khasra nos. 3107, 3108, 3109 and khasra no.3110 belongs to the Central Government and is in possession of Bombay Brass Factory. Concededly, the case of the appellant is that the School has no concern with khasra no. 3110. In this view of the matter, a finding of fact has been recorded that the respondents are in possession of khasra no.3110 only and not in possession of khasra nos. 3107, 3108 & 3109 and no evidence was led by the appellant to establish that there was any encroachment by the respondents on the aforesaid three khasra numbers owned by the School. Therefore, the finding of fact recorded by the Courts below can hardly be faulted with. Even in his testimony of PW3- M.S.Saggu, the Principal of the School, he admitted that the demarcation had been got done, but the same was not produced on this file and he further admitted that the suit property falls in khasra nos. 3107, 3108 and3109 and denied the possession of the R.S.A.No.5845 of 2003 -9- .... respondents on khasra no.3110, but ultimately failed to substantiate such a plea by any evidence. In fact, he goes on to admit that the respondents have constructed a room on the place between the wall of the School and the wall of the Bombay Brass Factory. From this very statement, which has come in the cross-examination of PW3-M.S.Saggu, an inference can be drawn that the construction and possession of the respondents are beyond the wall of the School and the wall of the Bombay Brass factory, but it is not clear as to whether their possession is on the land of the appellant. Accordingly when a pure simple question of fact has been decided by the Courts below and no material has been shown from where it can be stated that there is a misreading of evidence which has resulted in the perverse findings, I am of the considered opinion that the findings of the Courts below do not warrant any interference. Therefore, the questions of law which have been formulated by the learned counsel for the appellant in the grounds of appeal and which are reproduced below, do not arise for determination by this Court as there is no evidence of the respondents being in possession of the property of the School either as licencees or as encroachers:- 1. Whether an employee can refuse to vacate the premises allotted to him and set up independent title for those premises? 2. Whether a licencee can refuse to vacate the premises? 3. Whether the documents that come into existence during the pendency of the suit and are neither pleaded nor relied upon, R.S.A.No.5845 of 2003 -10- .... could be taken into account by the ld. Courts below? Consequently, the appeal is held to be without any merit and is dismissed. May 18,2009 ( Mahesh Grover ) “SCM” Judge