R.S.A. No. 2499 of 1992 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 2499 of 1992 (O&M) Date of Decision : 21.4.2009 Hawa Singh & another .......... Appellants Versus Lachhman Singh & another ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Jain, Sr. Advocate with Mr. Amit Jain, Advocate for the appellants. Mr. B.R. Mahajan, Advocate for respondent No.1. **** VINOD K. SHARMA, J. (ORAL) The appellant has challenged the judgment and decree passed by the learned Courts below decreeing the suit of the plaintiff / respondent for permanent injunction. The plaintiff / respondent filed a suit for permanent injunction against the defendant / appellants restraining them from taking forcible possession of the suit land and interfering with possession of the plaintiff / respondent over the land measuring 4 Bighas 10 Biswas comprised in Khasra No. 513, situated at Pana Rai Singhan, Siwani, Tesil Siwani District Bhiwani (now in Hissar). The plaintiff / respondents also prayed for a decree of R.S.A. No. 2499 of 1992 2 mandatory injunction directing the defendant / appellants to demolish two rooms, one Chhappar, Barh and two walls constructed in the Western portion of the suit land as depicted in the site plan. In the original suit, a prayer to issue prohibitory injunction was made. However, in view of the construction allegedly made during the pendency of the suit by the defendant / appellant, the plaintiff / respondent amended the suit to claim the relief of mandatory injunction. The plaintiff sought the decree of injunction both prohibitory and mandatory on the pleadings that the suit land was the property of custodian / Government which was purchased by him on 27.1.1983 in open auction. The sale was confirmed on 16.3.1983 in favour of the plaintiff and even a sale deed was executed on n12.9.1983 by the department. The plaintiff / respondent claimed to be in possession of the suit land since 15.5.1983. It was the case of the plaintiff / respondent that possession of the suit land was given to him by Tehsildar (Sales), Bhiwani by way of warrant of possession. The plaintiff also claimed that the defendant / appellants had no concern whatsoever with the suit land but they wanted to take forcible possession and in case they succeeded it was likely to cause irreparable loss to the plaintiff / respondent. As already observed above, the suit was amended wherein a plea was taken that Hawa Singh defendant No. 2 constructed rooms, one Chhapper / Barh, and two walls on the suit land on 1.11.1984, in absence of the plaintiff and, thus, it was prayed that the illegal construction be demolished and removed. R.S.A. No. 2499 of 1992 3 On notice, the suit was contested by defendant No.2 Hawa Singh whereas no written statement was filed by defendants No. 1 & 3. A specific stand was taken by defendants No. 1 & 3 that they did not want to file any written statement. In the written statement by defendant No.2 it was pleaded that Mohan and Bhagwana sons of Siria were also in possession of the suit land but they had not been joined as party and, therefore, the suit was bad for non-joinder of necessary parties. The defendant denied that no open auction was held on 27.1.1983. A plea was taken that the plaintiff / respondent in connivance with officials of the Custodian Department got the suit land transferred in his name by showing fictitious auction. The appellant / defendant No.2 claimed to be in possession of the disputed land since long on which it was claimed that a residential house stands constructed. It was also claimed that the Custodian Department / Government had no right to sell the suit land by way of auction. The auction was said to be wrong and illegal. The challenge was also made to the sale deed executed in favour of the plaintiff / respondent. Other allegations in the plaint were also denied. It was also the case of defendant No.2 / appellant that the plaintiff / respondent had no locus standi or cause of action to file the suit. The replication was filed, wherein the pleas in the plaint were reiterated and that of written statement were denied. On the pleadings of the parties, the learned trial Court was R.S.A. No. 2499 of 1992 4 pleased to frame the following issues :- 1. Whether the plaintiff is the owner and in possession of the suit land ? OPP 2. Whether defendant No.2 has encroached upon a part of the suit land as alleged in para 5-A of the plaint ? OPP 3. Whether the plaintiff is entitled to the injunction prayed for ? OPP 4. Whether the auction proceedings conducted by the Custodian Department are null and void ? OPD 5. Whether the suit of the plaintiff is barred by limitation ? OPD 6. Whether the suit is false and frivolous and defendant No.2 is entitled to special costs, if so how much ? OPD 7. Whether the suit is bad for non-joinder and mis- joinder of parties, as alleged ? OPD 8. Relief. The learned trial Court was also pleased to frame the following additional issues : 1-A. Whether the defendants have encroached some part of suit land ? If so, what effect ? OPP 1-B. Whether plaintiff is entitled to the relief of injunction (mandatory and prohibitory) as prayed for ? OPP” R.S.A. No. 2499 of 1992 5 Issues No. 1, 1-A, 1-B, 2 & 3 were taken up together. The plaintiff / respondent in order to prove his ownership over the suit land appeared in the witness box as PW-1 and deposed that the suit land was purchased from the Custodian Department in open auction on 27.1.1983 for a consideration of Rs. 5000/-. The sale certificate was produced on record as Ex. P-1. He also produced on record the document showing delivery of possession of the suit land on 15.5.1983 Ex.P4, besides placing on record the mutation Ex.P-2 and rough site plan Ex.P-3. Besides appearing himself as PW-1, he also produced Suresh Kumar, Clerk, Office of Tehsildar (Sales) to produce the file of auction, and also Sher Singh, retired Kanungo as PW-3, to prove the delivery of possession to the plaintiff on 15.5.1983 said to have been given on the basis of warrant of possession. He also produced one Dharam Singh as PW-4, who stated that plaintiff was the owner of the suit land, and he himself claimed to be present at the time of auction, where 20/22 persons were also said to be present. In cross-examination he stated that Joginder Singh was also in possession of one Bigha land whereas Hawa Singh was in possession of remaining suit land. Defendant No.2 / appellant along with other defendants, produced five witnesses to assert, that plaintiff / respondent had no concern with the suit land. It was deposed by defendant No.2, while appearing as DW-1, that he had constructed a house on the suit land, where he was residing since the time of his birth. He also deposed, qua the stand taken in the written statement. R.S.A. No. 2499 of 1992 6 Beside appearing in person he also examined DW-2, Ramesh Chand, Draftsman to prove the site plan. Surja Singh son of Girdhari examined as DW-3, also stated that plaintiff has no concern with the suit land and house of the defendant / appellant was constructed about 30-35 years ago. Sh. Ranbir Singh, Sadar Kanungo produced by the defendant / appellant as DW-4, deposed that he was Field Kanungo, Siwani on 25.3.1984, and on the application of the plaintiff Lachhman Singh, he had accompanied Naib Tehsildar, who was appointed as Local Commissioner, for demarcation of Khasra No. 513. He produced on record the demarcation report Ex. DW4/A. However, in his cross-examination he stated, that there was no construction on the date of inspection by the Local Commissioner except small Khudies i.e. temporary straw-shed. He also deposed, that nobody used to reside there at that time. He proved the objection petition Ex. DW4/B filed by Lachhman Singh with regard to the demarcation report. DW-5 Bhiksha, in his evidence sought to prove the possession of the defendant / appellant over the suit land. After framing of additional issues, the parties were further examined. On appreciation of evidence, referred to above, the learned Courts below have recorded a concurrent finding that the plaintiff is owner in possession of the suit property, in pursuance to the sale certificate Ex.P-1, and the mutation Ex. P2. The possession was also proved on the basis of warrant of possession Ex.P-4, which was executed by the authorities. The learned Courts below also held that the construction R.S.A. No. 2499 of 1992 7 claimed by the defendant / appellant was during the pendency of the suit. Consequently, the suit filed by the plaintiff / respondent, was ordered to be decreed. Mr. Arun Jain, learned Senior counsel appearing on behalf of the appellant, contends that this appeal raises the following substantial questions of law for consideration :- 1. Whether the judgments and decree of the learned Courts below are against the settled principle of law that the plaintiff / respondent was to stand on his own legs and not to take advantage of weaknesses of the defendant / appellant ? 2. Whether the judgments and decree passed by the learned Courts below are outcome of misreading and misinterpretation of oral and documentary evidence, thus, perverse ? In support of the first substantial question of law, the learned senior counsel for the appellants vehemently contended, that the case set up by the plaintiff/ respondent was, that he was owner in possession of the property in dispute and, therefore, it was for the plaintiff, to have proved these assertions, in order to succeed. Merely because the appellant / defendant was not able to prove his title, or legal possession, could not be a ground to decree the suit. The contention, therefore, is that plaintiff was to stand on his own legs. The contention referred to above, is based on the plea that the learned Courts below misinterpreted and misapplied the warrant of R.S.A. No. 2499 of 1992 8 possession, in order to hold, that the plaintiff / respondent was put in possession. Whereas in the cross-examination of PW-3, it is proved, that the warrant of possession was not signed by the Tehsildar (Sales), therefore, Ex.P-4 was not a valid document, which could be executed. The contention, therefore, was that the sale certificate could not prove the possession of the defendant, which admittedly continued to be with the defendant / appellant. It was also the contention of the learned senior counsel for the appellants, that in order to succeed, on the question of ownership, the plaintiff was not only required to prove the sale certificate but also ownership of the Custodian Department to draw a valid enforceable title. The contention of the learned senior counsel for the appellants further was, that in the present case the plaintiff / respondent failed to bring on record, any material showing that the Custodian Department was the owner of the property in dispute, which could give ownership title to the plaintiff / respondent. The contention of the learned senior counsel for the appellant also was, that appellant / defendant had produced on record documentary evidence, by way of voter list to show that it was the defendant / appellant, who was actually in possession of the suit property, therefore, the substantial questions of law, claimed, deserves to be answered in favour of the appellant / defendant. In support of the substantial question of law the learned senior counsel for the appellant, placed reliance on the judgment of the Hon'ble R.S.A. No. 2499 of 1992 9 Supreme Court in the case of Sri Thimmaiah Vs. Shabira and Ors. 2008(2) HRR-1, wherein the Hon'ble Supreme Court was pleased to lay down as under :- “6. Undisputedly, the suit was one for permanent injunction and in such a suit the plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. The general proposition is well settled that a plaintiff not in possession is not entitled to the relief without claiming recovery of possession. Before an injunction can be granted it has to be shown that the plaintiff was in possession.” On consideration of the matter, I find no force in the contention raised by the learned senior counsel for the appellants. Mr. B.R. Mahajan, learned counsel for respondent No.1 rightly pointed out that the validity of the sale certificate issued by the Custodian Department could not be challenged by the defendant / appellant, as finality is attached to the action taken by the Authorities under the Displaced Persons Compensation and Rehabilitation Act, 1954. Admittedly, the appellants in spite of sale certificate having been issued, in favour of the plaintiff / respondent, did not challenge it before the authorities under the Act or by taking legal remedies available under the law. It is not open to the appellants to have challenge the validity of sale certificate in the Civil Court, especially when they failed to prove under which authority of law they were claiming possession , nor disclosed as who was the owner of the property. Mere denial of title of the plaintiff R.S.A. No. 2499 of 1992 10 could not be a ground to non-suit the plaintiff and, therefore, no fault can be found with the finding recorded by the learned Courts below, holding the plaintiff / respondent to be owner of the property in dispute. The contention of the learned senior counsel for the appellant that the plaintiff, had failed to prove his case and could not take benefit of the weaknesses of defendant, also cannot be sustained as the plaintiff / respondent not only proved his title to the property by proving on record the sale certificate issued in his favour, he also produced the auction proceedings, as well as produced evidence showing handing over of possession, in pursuance to the warrant of possession. The factum of issuance of warrant of possession was even admitted by the witness produced by the appellant, who admitted the factum of issuance of warrant of possession. The stand of the defendant / appellants that the construction was raised since long where they were residing, stood belied from the report of the Local Commissioner, wherein it was proved, that the disputed property was vacant land. The learned Courts below rightly held, that the construction on the land was made subsequent to the filing of the suit, and decreed the suit. For the reasons stated above, the substantial question of laws are answered against the defendant / appellants. Consequently, the appeal is ordered to be dismissed but with no order as to costs. 21.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE