RSA No.4089 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4089 of 2006 (O&M) Date of decision: 29.7.2010 Satyawati and others ......Appellant(s) Versus Kishan Lal and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. K.B Sharma, Advocate for the appellants. Mr. P.K.Mutneja, Advocate for the respondents. Rakesh Kumar Garg, J. This regular second appeal is filed by the Legal Representatives of the plaintiff-Purshotam Lal Kalra (since deceased) challenging the judgment and decrees of the Courts below whereby his suit for permanent injunction restraining the defendant-respondents from interfering in his possession over the suit property with a further prayer that in case the defendants are found to be in possession over any part of the property, to grant a decree for mandatory injunction against the defendant- respondents directing them to hand over the possession, was dismissed with costs. Briefly stated, the facts of the case are that respondent-plaintiff Purshotam Lal (since deceased and represented by his legal heirs- respondents) filed a suit for permanent injunction against the defendant- respondents restraining them from interfering in his possession and enjoyment of the suit property marked by letters H B C D E F G as shown in the site plan attached with the plaint forming part of plot No.2-N/BP 75 RSA No.4089 of 2006 (O&M) 2 N.H.2, NIT, Faridabad. It was also prayed that the defendants be restrained from encroaching and trespassing the suit property. In the alternative, it was pleaded that if the defendants were found to have succeeded in encroaching upon any portion of the suit property or if they were found in possession of any portion of the same, then a decree for mandatory injunction be passed in favour of the plaintiff and against the defendants directing them to hand over possession of the same to the plaintiff. Additionally, a decree for possession was also sought. The case set up by the plaintiff in the suit was that he had purchased the suit property from Pran Nath Kapoor through sale deed dated April 30, 1965 registered on May12,1965 and had obtained possession of the same. Thereafter, he had constructed some rooms and covered them with tin sheets and raised boundary walls along-side the property. He had also executed a general power of attorney in favour of Pritam Lal Gandhi authorizing him to act for and on his behalf. When the defendants tried to grab the suit property, the present suit was instituted against them. The suit was contested by the defendants. They claimed that Gurdwara, as shown by letters ‘AFEDCYZ’ in the site plan submitted by the defendants along with the written statement, had been in existence in the suit property since 1985 onwards, at point ’CBYZ’ Guru Granth Sahib had been placed and at point ’G’ Nishan Sahib had been flared. Further more, there also exits a Temple at point ‘UWXV’ and Idols of Hindu Gods have been set up and at point ‘MLKJ’ there is a stage to deliver the religious lectures. At point ‘ONJKTSRQPIVUDCBA’ there is boundary wall of the property of Gurudwara and Temple. It was also stated that Gurudwara and Mandir were being used by the general public for offering their prayers. They further stated that a false case was got registered by the plaintiff RSA No.4089 of 2006 (O&M) 3 against Khan Chand, Tole Ram and Puran Chand vide FIR No.286 dated November 27, 1985 under sections 447/506 Indian Penal Code, Police Station Kotwali, in which they were later on acquitted. On their respective pleadings, the parties went to trial Court and the following issues were framed: (1) Whether the plaintiff is owner in possession of the property in dispute detailed in para no. 1 of the plaint and had raised the construction over it ? OPP (2) If the plaintiff is not proved in possession over any portion of the property, whether he is entitled for decree of possession? OPP (3) Whether the suit is not maintainable in the present form? OPD (4) Whether the suit is bad for misjoinder and non- joinder of parties as alleged? OPD (5) Whether the plaintiff has not come to the court with clean hands, if so its effects? OPD (6) Whether the plaintiff has no locus standi to file the suit? OPD (7) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD (8) Whether the plaint does not disclose any cause of action? OPD (9) Whether report of L.C. is liable to be set aside? OPD (10) Relief.” After hearing learned counsel for the parties and considering the evidence on record, the trial Court dismissed the suit with costs. While RSA No.4089 of 2006 (O&M) 4 dismissing the suit, the trial Court held that the defendants proved their possession over the suit property and also succeeded in proving that there is a temple and gurudwara in existence over the suit property and the plaintiff has established his ownership over the suit property. The trial Court further held that despite the fact that the plaintiff was well aware that he is not in possession over the suit property, he preferred to file a suit for permanent injunction taking alternative plea for recovery of possession without affixing the court fee required for the purpose of suit for possession and therefore, was not entitled to a decree for possession. The trial Court also held that the plaintiff had not come to the Court with clean hands and suit filed by him for permanent injunction in the absence of his possession was not maintainable. Aggrieved from the aforesaid judgment and decree of the trial Court, the appellants preferred an appeal before the Lower Appellate Court, only on issues No.1, 2, 3 and 5. The Lower Appellate Court vide impugned judgment and decree dated 25.9.2006 dismissed the aforesaid appeal and upheld the findings recorded by the trial Court. Not satisfied from the aforesaid judgment and decrees of the Courts below, the appellants have approached this Court through the instant appeal. Learned counsel for the appellants has vehemently argued that both the Courts below after having found that the appellants were the owners of the suit property have wrongly denied the decree for possession and further holding that the suit of the plaintiff-appellants was not maintainable. Elaborating further, learned counsel for the appellants has argued that the Courts below have lost sight of the fact that in the alternative, relief of possession was claimed and thus, the suit was maintainable and even if required court fee was not affixed to claim the RSA No.4089 of 2006 (O&M) 5 aforesaid relief, the Courts below ought to have given an opportunity to the appellants to affix proper court fee so as to enable them to seek decree for possession. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial question of law arises in this appeal: “Whether a person who is held to be owner can be declined a decree for possession?” On the other hand learned counsel for the respondents has vehemently argued that the appellants filed a suit for permanent injunction without being into possession and therefore, the same was not maintainable and the Courts below have rightly dismissed the suit. It was further argued that a finding of fact has been recorded that the plaintiff had not affixed the required court fee for a suit for possession and had not approached the Court with clean hands and thus, no relief can be granted to him and therefore, the appeal is liable to be dismissed. I have heard learned counsel for the appellants and perused the impugned judgment and decrees. At the outset it may be mentioned that learned counsel for the appellants could not challenge the finding of fact recorded by the Courts below regarding the possession of the defendant-respondents over the suit land and fairly admitted that suit for permanent injunction without being into possession was not maintainable. It is also not in dispute that despite a finding recorded by the trial Court that required court fee for the purpose of claiming relief of possession was not affixed, the appellant never sought any opportunity before the trial Court or the Lower Appellate Court to make up the deficiency in the court fee. Simply because the appellants were held to be owners of the suit property, they cannot be granted a decree for RSA No.4089 of 2006 (O&M) 6 possession of the same in the absence of claim for the relief of possession in accordance with law i.e. by claiming relief of possession in the plaint along with affixation of the required court fee. Not only this, under issue No.7 before the trial court, the defendant-respondents had raised an argument to the effect that proper court fee was not affixed by the appellants as they had claimed an alternative relief for recovery of possession and it was observed by the trial Court that “from the perusal of para No.8 of the plaint, it was clear that the intention of the plaintiff was only to file suit for injunction and the requisite court fee for the purpose of valuation of the suit property and jurisdiction in a suit for injunction was affixed” and in these circumstances, it was held that the plaintiff had paid necessary court fee for the purpose of a suit for injunction. Despite the aforesaid finding given by the trial Court, the appellants failed to challenge the same before the Lower Appellate Court or raise the issue for making up the deficiency in court fee for claiming relief of possession. From the aforesaid discussion, it is clearly established that relief of possession was never claimed by the appellants in accordance with law and therefore, the substantial question of law as raised by the learned counsel for the appellants is answered against them. No other argument was urged. Dismissed. July 29, 2010 (RAKESH KUMAR GARG) ps JUDGE