RSA No.1763 of 2011 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1763 of 2011 Date of decision: July 11, 2011. Joginder Singh ... Appellant(s) v. Satnam Singh & Ors. ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Satinder Khanna, Advocate, for the appellant(s). Kanwaljit Singh Ahluwalia , J. (Oral): Present regular second appeal has been instituted by plaintiff to the suit. Having failed in two courts below, he has approached this Court with a prayer that he was entitled to grant of permanent injunction restraining the defendant-respondents from interfering in the possession of land measuring 9 kanals and 16 marlas situated in village Khothran, Tehsil and District Nawanshahar, detail and description of which was given in the plaint. It has been urged that defendants ought to have been restrained not to forcibly or illegally dispossess the appellant-plaintiff from the suit land. Plaintiff-appellant filed the suit through his attorney Nirmal Singh. It was stated that the plaintiff was the owner in possession of the suit property measuring 9 kanals and 16 marlas. The suit land had fallen to the share of the plaintiff in the partition effected under the orders of Assistant Collector First Grade, Nawanshahar and he was put into possession thereof vide rapat RSA No.1763 of 2011 -: 2 :- Roznamacha Wakiati dated 14.3.2001. Reliance was placed upon the rapat of Roznamcha Wakiati along with Sanad Taqsim. It was stated in the suit that the defendants had no concern whatsoeverwith the suit land or any part thereof but they have been threatening to interfere in the possession of the plaintiff over the suit land and to dispossess him forcibly and illegally. Furthermore, the defendants had made attempts to obstruct the plaintiff from raising construction over the suit land. Upon notice, defendants appeared and filed a written statement by taking various preliminary objections, one of which is needed to be reproduced hereunder:- “3. That the present suit is bad for non joinder of necessary and proper party. Sarabjit Kaur w/o Mohinder Singh, Neel Kanth s/o Rattan Chand, Joga Ram s/o Girdhari Lal, Rekha Rani wife of Jog Raj, Sant Ram s/o Dhanna Ram, Nirmal Singh s/o Sant Ram, Arvind Kaur Chawla w/o Balwinder Singh, Gopal Krishan s/o Naranjan Dass, Avtar Singh s/o Joginder Singh, Ranjit Singh s/o Khushal Singh, Ram Kishan s/o Sarwan Dass, Sadhu Ram s/o Bhagat Ram, Harjit Singh s/o Joginder Singh, Bhajan Singh s/o Dhyan Singh, Sukhbir Singh s/o Nasib Chand, Diwan Singh s/o Shingara Singh, Satya Devi w/o Param Ram are necessary parties to whom the plaintiff himself through attorney has already sold the specific portion with the specific boundaries mentioned in the share in the sale deed, delivered the possession and gave the passage to their property sold to them. The remaining property which has fallen into the passage was entered in the col. of ownership and actually these RSA No.1763 of 2011 -: 3 :- are not property at the spot which could be used by the plaintiffs out of the suit land.” On merits, it was stated that neither the plaintiff is owner nor in possession of the property in question. He has sold the property to different vendees out of the joint land. Defendants/co-sharers are entitled to 15 feet passage given by the vendees. The claim of the plaintiff is liable to be rejected as the suit property forms part of the passage which has been sold to the defendant-respondent vendee. It was stated that appellant- plaintiff fraudulently misrepresented the facts before the Revenue Authorities and had got the property in his name in partition, but the same is passage. The trial court relied upon the admission made by the plaintiff in cross examination that his father owned 6-7 kilas of land from which many plots were carved out and they were provided with passage. The court further held that the appellant-plaintiff was not entitled to discretionary relief of injunction as he had not disclosed as to how much area was left for common purposes. The trial court held as under:- “9.... Moreover, the plaintiff has filed simple suit for injunction based upon entries in the jamabandi, but did not mention in the plaint that his father from whom he has inherited property, developed colony, area of the colony including the plot and rasta is not mentioned in the plaint. It is clear that if any unauthorized colony is developed, plots which are sold stands mutated in view of those who purchased the plots but the rasta/apssage or plots reserved for common facility like parks, community centre, green belt, which are shown by the owner at the time of selling the plots, remain in the revenue record in RSA No.1763 of 2011 -: 4 :- favour of owner and if that be so, the plaintiff was duty bound to disclose that what area he developed, what area he left as passage, what area was left for community centre, public parks, green belt in the said colony. If the plaintiff has failed to disclose the same, he cannot be benefited for the confusion created by him, which he was duty bound to clear. As such, this issue is decided against the plaintiff and in favour of defendants.” The lower appellate court also concurred with the findings given by the trial court. The lower appellate court gave due credence to the argument raised by Counsel for the respondent that as per sale deed Ex.D1, passage of 15 feet wide has been left which is part of the suit land. The court further held that Nirmal Singh has appeared as attorney on behalf of the plaintiff and he was not competent to depose on behalf of the principal regarding the facts which are in personal knowledge of the principal. The lower appellate court found following fact:- “12. The plaintiff although did not disclose in the plaint that he had carved out the plots but PW1 Nirmal Singh who is General Power of attorney of the plaintiff, admitted in his cross examination that except the property in question, remaining land has been carved out with plots. Those plots have got rasta and every plot is situated on the rasta. Thus, it is clear that the plaintiff has concealed material facts in the present case.” Entire edifice of the case of the plaintiff appellant is built on the Sanad Taqsim, Ex.P6. Rekha Rani defendant appeared as a witness and tendered her affidavit in which it has been specifically stated that the RSA No.1763 of 2011 -: 5 :- plaintiff was owner of 6-7 kilas of land in the village and the said land was carved out into plots and rasta was provided to each and every plot. Some of the vendees to whom plots have been sold have raised the foundation. This fact is supported by admission made by Nirmal Singh attorney of the plaintiff when he stated in his cross examination that Inderjit Singh son of Jagat Singh was appointed general attorney by father of the plaintiff. The said attorney had carved out plots touching the rasta to the different vendees. He further admitted to be correct that there is a constructed house of Sarwan Ram in the property which was earlier owned by his father Inderjit Singh who had sold the plots to various persons to establish the colony, has not been examined. Shri Satinder Khanna, Counsel appearing for the appellant, has stated that from the revenue record it is apparent that the plaintiff is owner of the property and by Sanad Taqsim Ex.P6, the same has fallen to the share of the plaintiff. This contention of the Counsel cannot be accepted to grant relief of injunction when it has come on the record that for establishing the colony, land was carved out into many plots and the plot holders were provided with rasta. From the copy of the notarized sale deed Ex.D1 , it is apparent that a 15 feet passage was left in favour of Rekha Rani defendant. In view of the fact that both the courts below have rightly appreciated the evidence, no interference is warranted as no question of law, much less substantial one, has arisen for consideration of this Court. Hence, the present appeal is dismissed in limine. [Kanwaljit Singh Ahluwalia] July 11, 2011. Judge kadyan