R.S.A. No. 2523 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2523 of 1984 Date of Decision: 9.9.2008 Kashmiri Lal ...Appellant. Versus Siri Ram and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Ashok Gupta, Advocate for the appellant. None for the respondents. AJAY KUMAR MITTAL, J. This judgment shall dispose of two appeals being RSA Nos. 2522 and 2523 of 1984 as both arise from one and the same judgment and common questions of facts are involved in these cases. For brevity, the facts are being taken from RSA No. 2523 of 1984. This regular second appeal filed by defendant No.1 is directed against the judgment and decree dated 14.8.1984 passed by the Additional District Judge, Karnal, affirming that of the Additional Senior Sub Judge, Karnal, dated 9.8.1982 vide which the suit for mandatory and prohibitory injunction filed by the plaintiff, was decreed. Put succinctly, the facts of the case according to the plaintiff are that he was owner in possession of the site situated in front R.S.A. No. 2523 of 1984 -2- of his house being part and parcel of the same and he had constructed Thara and a Khurli thereon shown by letters ABC & DEFG, respectively in the site plan attached with the plaint. It was pleaded that at the instance of defendant No.1, the Gram Panchayat of the village issued a notice for demolition of the aforesaid structures on the grounds that the land beneath it belonged to it which was resisted. The Gram Panchayat proceeded with its design and directed removal of the Khurli vide its order dated 26.9.1960 and also imposed a penalty of Rs.25/- with a recurring fine of Re.1/- per day. Against the same, the plaintiff filed a suit against the Gram Panchayat regarding ownership of the property in dispute which was decreed by the Sub Judge IInd Class, Kaithal vide judgment and decree dated 30.5.1962. The Sub Judge held that the disputed structure formed part and parcel of the house of the plaintiff and that the Gram Panchayat had no concern whatsoever with the same. Feeling aggrieved by the judgment and decree of the trial court dated 30.5.1962, the Gram Panchayat filed an appeal which was dismissed by the Additional District Judge, Karnal on 30.11.1962. It was further pleaded that defendant No.1 instigated the Gram Panchayat to lay claim to the property in question although the same had been in the ownership and possession of the plaintiff as a part of his house since time immemorial. It was also pleaded that the defendants illegally and without any right demolished northern wall marked as EF of the Khurli against which the plaintiff reported the matter to the police and both the parties were challaned under Sections 107/151 of the Code of Criminal Procedure. According to the plaintiff, the defendants wanted to dispossess him from the property in dispute R.S.A. No. 2523 of 1984 -3- illegally and that gave rise to the filing of suit for mandatory injunction directing the defendants to re-construct and restore the Khurli in its original possession and further for prohibitory injunction restraining the defendants from dispossessing him from the property in dispute. To controvert the stand of the plaintiff, the defendants filed a joint written statement raising various preliminary objections. It was pleaded that there was no Khurli ever constructed overthere by the plaintiff and the entire land was being used by all the residents of the locality and the same formed a common chowk known as 'Holi Chowk' where the Holi was being burnt every year by the villagers. It was further pleaded that the plaintiff had tried to construct a wall at the property in dispute forcibly and when the same was objected and resisted, a dispute arose and both the parties were proceeded against under Section107/151 of the Code of Criminal Procedure for the breach of peace. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the trial court framed the following issues:- “1. Whether the plaintiff is the owner in possession of the Thara and Khurli as alleged in para No.1 of the plaint? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD R.S.A. No. 2523 of 1984 -4- 4. Whether the plaintiff has no locus-standi to file the present suit? OPD 5. Whether the plaint give no cause of action? OPD 6. Whether the plaintiff has not come to the court with clean hand? OPD 7. Whether the plaintiff is estopped from filing the suit by his act and conduct? OPD 8. Whether the suit is barred by resjudicata? OPD 9. Whether the suit is false and frivolous? OPD 10. Relief.” On the same facts and relating to the same property, one more suit was pending for adjudication. The trial court with the consent of the parties vide order dated 13.4.1983 consolidated the suit titled as 'Kashmiri Lal v. Om Parkash with the present suit. On appreciation of the oral as well as the documentary evidence led by the parties, the trial court decided issue No.1 in favour of the plaintiff holding that the plaintiff was owner in possession of the thara and Khurli as alleged in para No.1 of the plaint, whereas issues No. 2 to 9 were decided against the defendants. Accordingly, the suit filed by plaintiff-Siri Ram was decreed and the other civil suit filed by Kashmiri Lal was dismissed by the trial court vide judgment and decree dated 9.8.1983. Against the judgment and decree passed by the trial court, two appeals were filed by Kashmiri Lal and the lower appellate court by a common judgment and decree dated 14.8.1984 dismissed both the appeals and affirmed the findings recorded by the trial court. Hence, the present two regular second appeals, as mentioned above. R.S.A. No. 2523 of 1984 -5- I have heard the learned counsel for the appellant and have perused the record with his assistance. The primary issue which arose in this case for adjudication was whether the plaintiff was owner in possession of the 'Thara and Khurli' , as alleged in para 1 of the plaint. The Courts below in view of the judgment, Ex.P4, in the earlier litigation regarding the same property and after considering the evidence on record had come to a conclusion that the property in dispute i.e. 'Thara and Khurli' was in front of the house of the plaintiff and was owned by him. No fault could be shown by the learned counsel in the conclusions arrived at by the courts below. A perusal judgment, Ex.P4, dated 30.5.1962 passed in civil suit No. 193 of 1961, titled as Siri Ram Vs. Gram Panchayat by Shri Mukhtiar Singh, PCS, establishes that the ownership of the suit property vested in the plaintiff. The Gram Panchayat had challenged the findings in Ex.P4 but failed before the appellate court and the same became final. It may be noticed that though Ex.P4 may not be binding on defendant-appellant as he was not a party in that litigation but its persuasive value regarding ownership of the plaintiff cannot be ignored altogether. Moreover, when Kashmiri Lal (the defendant in the suit) had appeared as a witness in the said suit, the Sub Judge in para 7 of its judgment had observed that he was a liar and tried to deny the fact that the proceedings under Sections 21 and 23 of the Gram Panchayat Act were launched against the plaintiff on his application. Further, in para 5 of the judgment, Ex.P4, it had been recorded that the learned Sub Judge himself inspected the site in dispute and observed that the disputed property R.S.A. No. 2523 of 1984 -6- was the same which was in dispute in the year 1927. After recording the evidence of the parties, the Sub Judge came to the conclusion that the plaintiff was owner in possession of the suit property. In view of the concurrent findings of fact recorded by the courts below, no error could be pointed out by the learned counsel for the appellant which may warrant interference by this Court. There is no misreading and misappreciation of any evidence. Accordingly, finding no merit in both the appeals, the same are hereby dismissed. There shall, however, be no order as to costs. September 9, 2008 (AJAY KUMAR MITTAL) gbs JUDGE R.S.A. No. 2523 of 1984 -7- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2522 of 1984 Date of Decision: 9.9.2008 Kashmiri Lal ...Appellant. Versus Om Parkash and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Ashok Gupta, Advocate for the appellant. AJAY KUMAR MITTAL, J. This appeal is dismissed. For reasons, see separate judgment of even date recorded in RSA No. 2523 of 1984 (Kashmiri Lal Vs. Siri Ram and others). September 9, 2008 (AJAY KUMAR MITTAL) gbs JUDGE