R.S.A.No. 2306 of 1997 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2306 of 1997 Date of decision: 13.10.2009 Murti Shri Durga Bhawani (Hetuwali) Trust and another ......Appellants Versus Sunder Lal Ahuja @ Sunder Dass and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. M.L.Sarin, Sr.Advocate with Ms.Alka Sarin, Advocate, for the appellants. Mr.V.K.Jindal, Advocate, for the respondents No.1 and 2. Mr.Sanjeev Gupta, Advocate, for respondent Nos. 8 and 9. **** SABINA, J. Plaintiffs Murti Shri Durga Bhawani (Hetuwali) Trust and others filed a suit for possession, which was decreed by the Sub Judge, Ist Class, Karnal vide judgment and decree dated 28.2.1991. In appeal, the said judgment and decree were set aside by the Additional District Judge, Karnal vide judgment and decree dated R.S.A.No. 2306 of 1997 2 16.1.1997. Hence, the present appeal by the plaintiffs No. 1 and 6. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “Murti Shri Durga Bhawani and others filed a for possession alleging that plaintiff No.1 is a duly approved trust registered under the Societies Registration Act XXI of 1860. The trust was created vide trust deed dated 11.8.1972 and registered on 14.8.1972 and also vide further supplementary deed dated 18.1.1973 registered on 30.1.1973. It has been submitted that vide resolution No.281 dated 30.10.1981, Shri Siri Ram Sharma, Trustee and President was duly authorised to present and prosecute the suit on behalf of of plaintiff plaintiff No.1, trust. It has been averred that plaintiff No.1 is the owner of the land comprised in Khasra No.4833 besides other land situated within the revenue estate of Karnal. It has been pleaded that defendant No.1 without any right or authority trespassed over a piece of land shown in the plan attached with the plaint out of Khasra No.4833 in the year 1973 as detailed in para No.5 of the plaintiff. According to the plaintiffs, in the year 1974, plaintiff No.1 applied for execution of a decree which was obtained against Municipality Karnal qua the property in question and other properties. It has been pleaded that the R.S.A.No. 2306 of 1997 3 defendants along with other perosons filed a written reply- cum-objections-cum-application with a view to secure an order that the execution be quashed against them. Defendant No.1 wanted to raise construction on the property in question, but the plaintiff No.1 got a stay qua the construction from the executing court. However, later on the executing court allowed defendant No.1 to raise construction on the undertaking that if at any time any decision of the court goes against him, he would be having no claim whatsoever regarding the construction raised. Later on, as per the averments of the plaintiffs, defendant filed a civil suit No.371 of 1981 for permanent injunction on 26.5.1975 against Bhagwat Sarup and others on the ground that he has become the owner of the property by adverse possession. Shri R.C.Bansal, the then Sub Judge, Karnal, vide his order dated 30.9.1981 held that Sunder Dass Ahuja Proprietor of Janta Furniture Hosue now known as Ahuja Furniture Hosue and and Gopal Singh Proprietor of Guru Nanak Furniture House have failed to prove their adverse possession. But as Sunder Dass and Gopal Singh succeeded to prove their possession, a decree for permanent injunction was passed in their favour and whereby Bhagwat Sarup and others were restrained from interfering in their possession R.S.A.No. 2306 of 1997 4 except in due course of law. According to the plaintiffs, Sunder Lal Ahuja, defendant No.1 has inducted Diwan Chand defendant No.2 in the premises in question and in this way both the defendants are in possession of the property in dispute. Plaintiff alleged that under the law and equity, plaintiff No.1 is entitled to take possession of the property after demolition of the construction raised thereon. Further the case of plaintiffs is that defendants are bound to Rs.3600/- as damages for use and occupation for the last three years. So a suit for possession and for recovery of Rs.3600/- on account of damages for use and occupation was filed. 3. The defendants contested the suit, filed their written statement and denied the allegations of the plaintiffs. It has been pleaded that during an earlier litigation between the parties in suit No.371 of 1981 titled Sunder Dass Ahuja etc. Vs. Bhagwat Sarup etc. the present plaintiffs maintained that the defendant No.1 was put in possession of the suit property by the Municipal Committee during the pendency of the suit filed by the present plaintiffs namely Har Sarup etc. and one Shiv Kumar against Municipal Committee, Karnal. The suit filed by Har Sarup and others against Municipal Committee, Karnal, on 11.6.1962 was decided on R.S.A.No. 2306 of 1997 5 30.7.1965. So the case of defendants is that the plea of plaintiffs that the defendants occupied the suit property in the year 1973 is quite contrary to the earlier stand taken by them. The defendants alleged that they are in possession of the suit property for the last more than 32 years as owners. Previously defendant No.1 Sunder Lal Ahuja was running the business of furniture under the name and style of Janta Furniture House and thereafter, the name of the concern was changed to Ahuja Furniture. The suit property was assessed to house tax for the first time in the year 1956-57. It has also been pleaded that during the execution proceedings of Suit No.292 of 1965 titled Har Sarup etc. vs. Municipal Committee, Karnal, it was alleged by the present plaintiffs that defendant No.1 bound by the decree against the Municipal Committee as he was holding the suit property under the Municipal Committee. So the case of defendants is that the plea of plaintiffs that the suit property was occupied in the year 1973 was quite wrong. Defendants raised construction involving huge expenses many years ago. No attempt was ever made by the plaintiffs to restrain the defendant No.1 from raising construction. Hence, it has been pleaded that the plaintiffs are estopped from filing the suit on account of their own act and conduct. According to R.S.A.No. 2306 of 1997 6 the defendants, it has not been mentioned by the plaintiffs as to how plaintiff No.1 acquired title in respect of Khasra No.4833. The defendants claimed that defendant No.1 is in possession of the suit property for the last more than 32 years and that the possession was adverse, open, hostile and to the very knowledge of the plaintiffs. It has been submitted that some portion towards West of the suit property out of area in possession of defendant No.1 was surrendered in favour of Haryana Roadways in view of the order dated 14.1.1977 passed by the Collector, Karnal. Further, the case of the defendants is that the suit property was never the subject matter of litigation between the plaintiffs and the Municipal Committee in civil suit no.292 of 1965. The execution application of plaintiff No.1 was dismissed and so defendant No.1 could not legally be evicted in execution of the decree passed in civil suit No.292 of 1965. Gopal Singh of Guru Nanak Furniture also filed similar objections along with defendant No.1. The suit has been alleged to be bad for mis-joinder and non-joinder of necessary parties. It has been averred that the plaintiffs have no concern whatsoever with the property in question and that they are also not entitled to any amount as claimed. Rest of the pleas of the plaintiffs were denied. R.S.A.No. 2306 of 1997 7 On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the suit has been filed through a properly authorised person? OPP 2. Whether plaintiff No.1 is the owner of the suit land? OPP 3. If issue No.2 is proved whether the defendants have become the owners by adverse possession? OPD 4. Whether defendant No.1 has tress-passed over a piece of land as alleged In para No.5 of the plaint? OPP 5. Whether the suit is within time ? OPP (onus objected to). 6. Whether the plaintiffs have no locus standi to file and maintain the suit? OPD 7. Whether the suit is not legally maintainable? OPD 8. Whether the suit is bad for non joinder and mis- joinder of necessary parties? OPD 9. Whether the plaintiffs are estopped from filing the present suit on account of their act and conduct? OPD 10. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 11. Relief? Learned counsel for the appellants has argued that the suit land bearing Khasra No. 4833 belonged to the trust. In R.S.A.No. 2306 of 1997 8 earlier litigation, it has been held by this Court in Murti Shri Durga Bhawani (Hetuwali) Trust v. Harbhajan Singh and another 1988 (1) CLJ (C,Cr. & Rev.) 105 that Khasra No.4833 belonged to Shiv Kumar, co-sharer, and he had transferred the same in favour of the trust. The said litigation related to part of Khasra No.4833. Learned counsel for the respondents, on the other hand, has submitted that the suit property was not part of Khasra No.4833. The suit property was different and hence, the trust had no concern with the same. The respondents were in possession of the shops constructed over the suit property for the last many years and the trust had no concern with the same. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiffs-trust had filed the suit for possession. The case of the trust is that the suit property is part of Khasra No.4833, whereas, the case of the defendants is that the suit property is different and is not part of Khasra No.4833. There is no dispute regarding the fact that the plaintiff-trust is a registered body. Sunder Dass Ahuja and Gopal Singh filed a suit for permanent injunction against Bhagwat Sarup and others. The suit was disposed of by Sub Judge, Ist Class, Karnal vide judgment and decree dated 30.9.1981 and it was held that the plaintiffs had failed to prove that they had become owners of the suit land by way of adverse possession. However, defendant No.3 was restrained from R.S.A.No. 2306 of 1997 9 interfering in the peaceful possession of the plaintiffs except in due course of law. The said judgment was not challenged by any party in appeal and thus, attained finality. Har Sarup, Bhagwat Sarup, Anand Sarup and Shiv Kumar filed a suit against Municipal Committee, Karnal seeking relief of permanent injunction qua khasra Nos.4833 to 4835 that the Committee should not interfere in the possession of the plaintiffs over the said khasra numbers by constructing khokhas or otherwise changing the nature and shape of the suit property. It was also prayed that the khokhas constructed by the lessees of the Municipal Committee be got removed. The said suit decreed by Senior Sub Judge. Karnal vide judgment and decree dated 30.7.1965 except the site which was under the culvert in front of Electricity Power house. However, Sunder Dass Ahuja and Gopal Singh were not a party in the said suit and are not bound by the said judgment and decree. Moreover, the said judgment and decree were with regard to khasra Nos.4833 to 4835. The trust filed a civil suit bearing No.112 of 1981 against Gopal Singh, Kulwant Singh and Harbhajan Singh for possession and recovery of Rs.1,700/- on account of use and occupation of the suit land. The said suit was decreed and it was held that the plaintiff- trust was owner of the suit property as a co-sharer and the defendants had failed to establish their right and title in the disputed property and were mere trespassers. While deciding issue No.3, it R.S.A.No. 2306 of 1997 10 was held that the suit property was part of khasra No.4833 qua the share of Shiv Kumar, trustee as a co-sharer. This decree was upheld by this Court as well as Apex Court. Thus, there is no dispute with regard to the fact that khasra No.4833 belongs to the trust. In order to resolve the dispute as to whether the property in dispute in this case is part of khasra No.4833 or not, the material document is the report of the Local Commissioner Ex.D-16 and site plan Ex.D-17. As per the Local Commissioner, the premises in occupation of the defendants was beyond 434 sq.feet (i.e.khasra No.4833). In these circumstances, the trust was not owner of the property, which was beyond khasra No.4833. The furniture house in Ex.D-17 site plan has been shown beyond khasra No.4833. The property in possession of the plaintiffs is described to be beyond the Nala. In these circumstances, the learned Additional District Judge rightly held that the plaintiff trust was not owner of the property in dispute. Hence, the earlier litigation has no bearing on the facts of the present case as in the present case the suit land is not part of khasra No.4833. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE October 13, 2009 anita