RSA No. 3625 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 3625 of 2009 Decided on Oct 25,2010. Dharmender --Appellant vs. Mohinder and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Harkesh Manuja,Advocate,for the appellant Rakesh Kumar Jain, J, The plaintiff is in second appeal against the judgment and decree of both the Courts below by which his suit for declaration and permanent injunction has been dismissed. The case set up by the plaintiff is that he is co-owner in possession of the land comprising in Khasra No.461 measuring 3 bighas 12 biswas pukhta, to the extent of 140/1440 share, which comes to 7 biswas pukhta situated in the revenue estate of village Islampur, Tehsil and District Gurgaon, which is alleged to have been purchased by the plaintiff from its previous owner Smt.Kamla (defendant No.5) vide a registered sale deed dated 09.4.1996, for a consideration of Rs.98,000/-on the basis of which mutation No.1282 RSA No. 3625 of 2009 2 was also sanctioned. It is alleged that the suit land is being used a gait/gatwar. It is further alleged that out of 3 bighas 12 biswas, an area of 3 bighas 3 biswas was acquired by the State of Haryana, vide award dated 16.3.1993, for Sectors 38 to 41 and possession was also taken over by the Haryana Urban Development Authority (for short,'HUDA') and the remaining area of 9 biswas pukhta was jointly owned by the parties to the suit out of which the plaintiff was exclusive owner of 7 biswas pukhta. It is alleged that after the acquisition, some dispute had arisen between the defendants and the other co-sharers for apportionment of compensation which was settled on 10.9.1999 in a reference filed under Section 30 of the Land Acquisition Act,1894 (for short,'the Act'), therefore, the other co- sharers had no right, title or interest in the un-acquired land. It is further averred that the defendants have constructed residential house in the area measuring 533 square yards illegally about 10 years ago in excess of land owned by them because their actual share is 2 biswas pukhta out of the remaining unacquired land of 9 biswas pukhta, out of which the plaintiff is claimed to have purchased 7 biswas pukhta. It is further mentioned that the house of the defendants is liable to be demolished to the extent of excess area encroached upon by them. It is also submitted that the defendants wanted to raise unauthorised construction over that portion of the vacant land which is exclusive owned by the plaintiff. In the background of the aforesaid facts, a decree for permanent injunction was sought to restrain the defendants from raising any construction over the plot in dispute and also for mandatory injunction directing the defendants to remove the construction of their house and deliver vacant possession of the excess area of the plaintiff encroached upon by them. The suit was contested by defendants Nos. 1 to 4 by filing joint written statement. Their stand is that the land sold by erstwhile owner Smt.Kamla (defendant No.5) to the plaintiff was also acquired by the State in the year 1993 and as such the sale deed dated 09.4.1996 does not confer any right upon the plaintiff insofar as the land in dispute is concerned. It is alleged that the land measuring 9 biswas of khasra No.461 towards its southern side on which the RSA No. 3625 of 2009 3 defendants had constructed pucca house was released from acquisition in the year 1991. The plaintiff with some other persons had tried to dispossess the defendants from their residential house by demolishing boundary wall of their house, the said matter was reported to the police and a criminal case has been registered against the plaintiff and some other persons who have subsequently been released on bail. It was alleged that Smt.Kamla has also filed a suit against the plaintiff in which there is a restraint order against him (plaintiff). Purchase of the suit land by the plaintiff was also denied. Defendant Nos. 5 to 7 filed their written statement denying the averments made in the plaint. On the pleadings of the parties, issues were framed. Issue No.1 was decided against the plaintiff and resultantly, the suit was dismissed. Learned First Appellate Court had found that the residential house of the defendant was constructed in the year 1991 whereas the alleged purchase of the plaintiff is of the year 1996. It was also observed thus:- “A perusal of sale deed Ex.P2 shows that she had sold suit land measuring 7 biswas to appellant on 9.4.1996 and on the same day she also sold aforesaid already constucted house on the area measuring 533.33 square yards to Rafiq Ahmad son of Sayyad Ahmad vide sale deed Ex.P21 despite the fact that she was not its owner. The payment of sale consideration on behalf of Rafiq Ahmad was paid by Dharmender appellant through cheque No.0089376 dated 9.4.1996 drawn on Bank of India, Gurgaon and in proof of such facts, we can conveniently find signatures in English language of Dharmender Singh appellant as purchaser on this sale deed (Ex.P21). Whereas, payment of sale consideration was also made through another cheque No.0089377 dated 9.4.1996 drawn on Bank of India, Gurgaon by Dharmender Singh appellant for purchase of suit land measuring 7 biswas from Smt. Kamla vide sale deed Ex.P2. During arguments, learned counsel for respondents told that Rafiq Ahmad, shown as vendee in the sale deed Ex.P21, was none else but a servant of Dharmender Singh appellant and this fact has also not been disputed at the bar on behalf of learned counsel for appellant. RSA No. 3625 of 2009 4 It is also equally noteworthy that aforesaid Rafiq Ahmad by way of two sale deeds Ex.P23 and Ex.P24, both dated 13.8.1997 had sold one half share each in the aforesaid constructed house to Smt. Santosh wife of Shri Ramesh Singh and other one half share to Ramesh Singh son of Dharam Singh and the execution of both the sale deeds was witnessed by Dharmender Singh appellant. But appellant when entered into witness box tried to paint altogether a different picture by expressing no knowledge of sale of constructed house by Rafiq to Smt. Santosh, Smt. Santra and Smt. Savita, respondents (daughters of Smt. Kamla, respondent). However, he categorically admitted that respondents had been living in the constructed house since the year 1991. Had the house been constructed prior to the purchase of suit land by appellants in the year 1996 then no prudent man would believe that owners of this house would have encroached upon any area of suit land while constructing the house. A perusal of sale deed Ex.P2 shows that the sold land to appellant by Smt. Kamla failed to find mention of the boundaries on the four sides. Though appellant was mentioned to have been put in possession of the sold land yet in fact in the suit involving instant appeal, he failed to prove the same. On the contrary, it appears that in the garb of formal recital of acquisition of possession of sold land, appellant now appears to have been making frantic efforts to disturb peaceful possession of respondents over the already constructed house. It is also significant to mention that there is no formal recital in the sale deed Ex.P2 about State acquisition of some share of Smt. Kamla in the joint holding, having taken place in the year 1993”. Learned counsel for the appellant has only raised two questions in para 18 of the appeal that concurrent finding of fact has been recorded by the Courts below is a result of misreading of evidence but he has failed to point out the evidence which is alleged to have been misread by the Courts below while recording concurrent finding of fact which resulted into dismissal of the suit. As a matter of fact, I could not find any question of law RSA No. 3625 of 2009 5 much-less substantial involved in this appeal. Hence, the present appeal is found to be devoid of any merit and the same is hereby dismissed. No costs. Oct 25,2010 (Rakesh Kumar Jain) RR Judge