Regular Second Appeal No. 70 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 70 of 2011 Date of decision : January 10, 2011 Makhan Singh ....Appellant versus Sohan Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Prateek Pandit, Advocate, for the appellant L.N. Mittal, J. (Oral) Makhan Singh defendant no. 1 having remained unsuccessful in both the courts below has preferred the instant second appeal. Sohan Singh plaintiff-respondent no. 1 filed suit against appellant and proforma respondents no. 2 and 3 alleging that the plaintiff is owner in possession of 7 marlas Gair Mumkin Abadi land comprised of khasra no. 41/1/2 and has constructed two shops on eastern side. Vacant land on western side is being used as Ruri (dung etc.) by the plaintiff who has also installed fodder cutting machine and hand-pump there and also constructed tin shed and varandah for tethering cattle. Defendant no. 1 has forcibly occupied one of the two shops for which separate proceedings Regular Second Appeal No. 70 of 2011 -2- would be taken by the plaintiff. The defendants, however, threatened to dispossess the plaintiff from the remaining suit property forcibly and illegally. Accordingly, plaintiff sought permanent injunction restraining defendants from interfering in plaintiff's possession over the suit property and from taking forcible possession thereof. Defendants broadly controverted the plaint allegations. It was pleaded that defendant no. 1 is in possession of the suit property for the last 25 years. Defendant no. 1 is Commission Agent and is running shop. Front vacant land is meant for piles of wheat and paddy. Disputed land on the western side is also lying vacant where defendant no. 1 has installed hand-pump. Defendant no. 3 who is servant of defendant no. 1 is tethering cattle there and has kept Ruri there and also installed fodder cutting machine and constructed shed for tethering cattle there with permission of defendant no. 1. Plaintiff tried to take forcible possession thereof and removed upper part of the hand-pump which was reported to the police. However, the plaintiff resorted to the instant suit. Plaintiff is neither owner nor in possession of the suit land. Nagar Panchayat is owner of the suit land and defendant no. 1 has taken the shop on rent from Nagar Panchayat for the last 25 years. Various other pleas were also raised. Plaintiff in replication alleged that Nagar Panchayat is not owner of the suit land. On the contrary, Rehabilitation Department allotted the suit land to Bool Chand who sold it to the plaintiff and his brother. The suit land was evacuee property which vested in Central Government. Various other pleas were also raised. Learned Civil Judge (Senior Division), Kapurthala vide Regular Second Appeal No. 70 of 2011 -3- judgment and decree dated 18.2.2010 decreed plaintiff's suit (except regarding one shop which was admittedly in possession of defendant no. 1). First appeal preferred by all the three defendants has been dismissed by learned District Judge, Kapurthala vide judgment and decree dated 4.10.2010. Feeling aggrieved, defendant no. 1 only has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that allotment of suit land by Rehabilitation Department in favour of Bool Chand was cancelled by Financial Commissioner vide order dated 13.12.1990 as observed by Additional Director, Panchayat in order dated 12.8.1992 Annexure A/1 and therefore, the plaintiff is left with no right, title or interest over the suit property. The contention is completely misconceived, misleading and untenable. Order dated 13.12.1990 of the Financial Commissioner cancelling the allotment of suit land in favour of Bool Chand has not been produced by the defendants in evidence. Moreover, said order was under challenge at the hands of plaintiff- respondent no. 1 by filing writ petition as asserted by him. In addition to it, the plaintiff was in possession of the suit land having purchased it from Bool Chand to whom it had been allotted by Rehabilitation Department. Merely on cancellation of allotment of suit land to Bool Chand, defendants got no right to dispossess the plaintiff forcibly. On the contrary, the plaintiff being in established possession of the suit land could not be dispossessed therefrom except in due course of law. Defendants have no Regular Second Appeal No. 70 of 2011 -4- right to dispossess the plaintiff from the suit land because defendants have no right, title or interest in the suit land. There is no cogent evidence to depict that suit land was ever allotted to defendant no. 1 even by Gram Panchayat. Moreover, ownership of Gram Panchayat is also not established. On the contrary, in revenue record Bool Chand was recorded to be in possession of suit land since 1984-85 and subsequently plaintiff has been recorded to be in possession thereof. Consequently, there is no infirmity in the concurrent finding of the courts below that the plaintiff is in possession of the suit land. Defendant no. 1 – appellant alleged that one shop has been taken on lease by him from Nagar Panchayat. However, there is no documentary evidence led by him to prove his said version. He placed on record photostat copy of receipt Mark-A but the same has not been proved. The same, therefore, cannot be read in evidence. Moreover, the said receipt is not linked with the suit property. Even if Nagar Panchayat is owner of the suit land it can dispossess the plaintiff only in due course of law and not otherwise. Learned counsel for the appellant vehemently contended that plaintiff claimed ownership as well as possession of the suit land but has failed to establish his ownership and therefore, is not entitled to injunction. Reliance in support of this contention has been placed on judgment of this Court in Sohan Singh versus Jhaman, 1986(1) PLR 326 and judgment of Hon'ble Supreme Court in Anathula Sudhakar versus P.Buchi Reddy (Dead) By LRs & Ors., 2008(2) RCR (Civil) 879. The contention is completely misconceived. Suit land had been allotted by Rehabilitation Regular Second Appeal No. 70 of 2011 -5- Department to Bool Chand from whom it was purchased by the plaintiff. If there is some dispute regarding the said allotment between Rehabilitation Department, Nagar Panchayat and Bool Chand and plaintiff it does not give right to the defendants to dispossess the plaintiff from the suit land when defendants themselves have no right, title or interest therein. On the contrary, in the case of Sohan Singh (supra), plaintiff was found to be tress- passer and defendant was held to be owner of the suit property. In these circumstances, it was observed that relief of injunction had to be declined to the plaintiff who claimed the said relief on the basis of title which was not proved. Similarly, facts of the case of Anathula Sudhakar (supra) are also distinguishable. The aforesaid judgments are of no help to the appellant in the instant case. The plaintiff is proved to be in established possession of the suit land. His ownership is also proved except that allotment of the suit land to his predecessor Bool Chand may be under litigation. However, defendants in any event have no right, title or interest in the suit land. For the aforesaid reasons, I find no merit in the instant second appeal. Concurrent finding recorded by both the courts below in favour of plaintiff-respondent no. 1 is fully justified by evidence on record and is supported by cogent reasons. The same does not warrant interference in the second appeal as the same is not shown to be perverse or illegal in any manner. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L.N. Mittal ) January 10, 2011 Judge 'dalbir' Regular Second Appeal No. 70 of 2011 -6-