R.S.A. No.3124 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3124 of 1987 Date of Decision: 11.02.2011 Bihari Lal and others .......Appellants Versus Bihari Lal S/o Gela Ram and others .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. R S Mittal, Sr. Advocate with Sh. S K Tripathi, Advocate, for the appellants. Ms. Alka Sarin, Advocate, for the respondents. **** JITENDRA CHAUHAN, J. 1. This regular second appeal has been filed by the plaintiff-appellants, assailing the judgment and decree dated 10.06.1986, passed by the learned Sub R.S.A. No.3124 of 1987 2 Judge 1st Class, Faridabad (hereinafter referred to as ‘the trial Court’) dismissing the suit of the plaintiffs as well as judgment and decree dated 04.05.1987, passed by the learned Additional District Judge-II, Faridabad (hereinafter referred to as ‘the First Appellate Court), whereby, the First Appeal was also dismissed. 2. The brief facts of the case are that the plaintiff-appellants and defendant-respondents Nos.2 to 14 were the owners in possession of the plot measuring 30’ X 27’ situated at Ballabgarh Gate, Main Bazar, Old Faridabad. Earlier, Sohan Lal, father of the plaintiffs and predecessor of defendants Nos.2 to 14 was the owner in possession of the said plot being his ancestral property. In the year 1931, one Shri Ghansham Dass, son of Shri Tota Ram, resident of Mohalla Barh, Old Faridabad, filed a suit for recovery of money against late Shri Sohan Lal, the predecessor-in- interest of the plaintiffs and proforma defendants Nos.2 to 14. The suit was decreed as case No.653 decided on 12.08.1931, with the title Ghansham Dass Vs. Sohan Lal. In the execution proceedings, the decree-holder, Ghanshyam Dass, got the suit property attached. But late Shri Sohan Lal, the judgment-debtor of those execution proceedings, paid the decretal amount to the decree-holder with the result that Ghansham Dass did not get the suit property sold in execution of that decree. The suit property was ancestral with Shri Sohan Lal and continues to be so with the plaintiffs and proforma- defendants Nos.2 to 14. However, after his death, the plaintiffs and proforma defendants became owners in possession of the suit land. It was alleged that defendant No.1 wanted to purchase the suit property R.S.A. No.3124 of 1987 3 but the plaintiffs did not agree and, therefore, he was trying to take forcible possession by raising construction thereon. In this backdrop, suit for permanent injunction was filed by the plaintiffs before the learned trial Court, restraining defendant No.1 from interfering in their possession over the plot in dispute. 3. The defendant Nos.2 to 14 admitted the claim of the plaintiffs to the effect that the plaintiffs were entitled to get the construction raised by the defendant No.1 removed, in case he succeeds in doing so, during the pendency of the suit. 4. The defendant No.1, contested the suit of the plaintiff-appellants by filing written statement, inter alia, pleading that the plaintiffs did not have any locus standi qua the present suit and the same was not maintainable. It was alleged that the suit property had not been correctly described by the plaintiffs. According to him, the property bears EP No.98 and is an evacuee property which was allotted to him by the Rehabilitation Department on 22.07.1981, as the plaintiff was a displaced person. A Registered Deed was executed in his favour by the Rehabilitation Department. He made kacha construction on the plot prior thereto. After the execution of the deed, the defendant No.1 demolished the temporary construction and wanted to raise building upon the same, for which site plan was approved by the Faridabad Complex Administration. 5. In their replication, the plaintiffs reiterated the stand taken by them in the suit. R.S.A. No.3124 of 1987 4 6. From the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs and the defendants No.2 to 14 are owners in possession of the Plot in suit? OPP. 2. Whether the defendant No.1 had purchased suit property from the President of India as alleged, if so to what effect? OPD. 3. Whether the defendant No.1 disobeyed the order of the court at 12.11.1982 if so to what effect? OPD. 4. Relief. 7. Vide judgment and decree dated 10.06.1986, the learned trial Court dismissed the suit of the plaintiffs with costs. Aggrieved therefrom, the plaintiffs preferred an appeal before the learned First Appellate Court, which was also dismissed vide judgment and decree dated 4.5.1987. Hence the present appeal. 8. Mr. R.S.Mittal, Senior Advocate, learned counsel for the appellants submits that the judgments and decrees of the Courts below are erroneous as both the Courts below have misread the documents. The learned counsel submits that the Courts below have erred in deciding issues No.1 and 2 together. In fact these should have been decided separately due to which, a prejudice has been caused to the plaintiffs-appellants. The learned counsel submits that it was established by the plaintiffs-appellants by producing the warrants of attachment dated 29.07.1932, Ex.P-6, in which the boundaries of the property are given that the plot in dispute was attached in money R.S.A. No.3124 of 1987 5 decree. The endorsement is dated 18.09.1932 on the backside of the warrant. Thereafter, the property was got released from attachment by paying the entire decretal amount. The counsel submits that the boundaries of the property in dispute tally with the property owned and possessed by Sohan Lal and after the death of Sohan Lal on 10.03.1954, it was inherited by the present appellants along with respondents No.2 to 14. The learned counsel assailed the findings of both the Courts below on Issue No.1. The counsel for the appellants submits that the claim of the defendant is qua the property measuring 30’ x 27’ which comes to 810 sq. ft. equivalent to 90 Sq. Yds. whereas the property forcibly occupied by the defendant-respondent No.1 is 1918.70 Sq. Ft. equivalent to 213.2 Sq. Yards and he has shown his ownership only qua 169 Sq. Yds. 9. Ms. Alka Sarin, the learned counsel for the respondent submits that no substantial question of law is involved in this case. The concurrent finding of facts recorded by both the Courts below do not warrant any interference by this Court. She supports the findings of both the Courts below. She submits that this Hon’ble Court in exercise of power under Section 100 of the Code of Civil Procedure should be reluctant to interfere with the finding of fact reached by the learned Courts below, after considering the entire evidence on record. 10. I have heard learned counsel for the parties and perused the record carefully with the able assistance of counsel for the parties. 11. The only controversy in this regular second appeal is that as to whether the Courts below have not correctly appreciated the R.S.A. No.3124 of 1987 6 documents, i.e., Ex.PW3/1, Ex.PW10/1 and Ex.D1-the conveyance deed ? 12. Both the Courts below have returned the findings against the plaintiffs, i.e., the plaintiffs are not the owner in possession of the property in dispute. The present suit was a simplicitor suit for injunction. There is no prayer for possession. It is well settled law that simplicitor suit for permanent injunction is not maintainable when the plaintiffs are is not in possession of the property. In this case, it is not proved that the plaintiffs-appellants are in possession of the suit property so the simple suit for permanent injunction is not maintainable. The property in dispute admittedly is an Evacuee property No.98, which was purchased by the defendant No.1 vide Ex.D-1 from the Rehabilitation Department. The defendant No.1 has proved beyond doubt that he is owner in possession of the property in dispute. It is an admitted fact that defendant No.1 is a displaced person and the property had been allotted to him vide conveyance deed, Ex.D1, by the Rehabilitation Department. On the other hand, the plaintiffs-appellants have not been able to produce any document of title regarding the property. 13. The case of the present appellants is that the property in dispute is different from the property allotted to defendant No.1. This Court has perused the two site plans Ex.PW-10/1 and Ex.PW-3/1. These site plans cannot take place of the proof of ownership or possession of the property. So, no reliance can be placed on the site plans Ex.PW-10/1 and Ex.PW-3/1. According to the site plan attached with the sale deed, the dimensions of the property No.98 is 43 ½ x 35 R.S.A. No.3124 of 1987 7 feet. In the Evacuee property register the plot of Rahim named as property No.98 was 43 ½ x 35 feet with a thatched shed therein. In the east of that plot some open land was shown. The site plan Ex.PW-3/1, prepared on 15.12.1982 by Kanhaya Lal Draftsman, Palwal, attached with the plaint shows boundaries as under:- East : Government road. West : Building of Goel Nursing Home. North : Government passage towards Talab. South : Plot of custodian at present ownership of Bihari Lal S/o Gela Ram. This plot is measuring 30’ X 27’ = 90 Sq. yards. So, the present boundaries of the disputed plot claimed by the plaintiffs do not tally with the property of the plot shown in plan, Ex.PW10/1, got attached in the year 1931 in money decree as in the west of that plot the property of Rahim Rangrej was shown, which now belonged to defendant no.1, and in the South of that plot the property of Bhagwan Mahajan was shown. The boundaries of the plot are totally different. There is sufficient documentary evidence on record to prove that defendant no.1 purchased the suit property No.E.P.98, from the Rehabilitation Department vide sale deed, Exhibit D1, registered on 5.08.1981 with Sub Registrar, Ballabgarh. Both the Courts below have rightly decided Issues No.1 and 2 in favour of Behari Lal son of Gela Ram-defandant No.1/respondent No.1. I do not deem it proper to interfere in the concurrent finding of facts recorded by both the Courts below against plaintiffs/appellants. The Courts below have correctly appreciated the maps, Ex.DW-3/1, Ex.PW-10/1 and conveyance deed, Ex.D1. R.S.A. No.3124 of 1987 8 14. In Ram Saran and another Versus Smt. Ganga Devi, AIR 1972 Supreme Court 2685, it has been held that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable. So, the suit as in the present form is not maintainable as the plaintiffs/appellants and defendants No.2 to 14 are not proved to be in possession of the suit property. 15. There is no substance in the argument of the learned counsel for the appellants that the plaintiffs/appellants could not lead proper evidence and more opportunity may be given to lead further evidence. The issues were framed in the trial Court on 14.10.1983 and the case was adjourned to 6.12.1983, 20.3.1984, 25.5.1984, 10.8.1984, 26.10.1984, 14.12.1984, 11.1.1985, 15.2.1985, 1.3.1985, 5.4.1985, and 17.5.1985 and on that day the counsel for the plaintiff had closed evidence, which shows that sufficient opportunities had been availed by the plaintiffs/appellants to lead their evidence. So the omission to decide the application under Order 41 Rule 27 of the Civil Procedure Code by the first Appellate Court will not prejudice the case of the plaintiffs/appellants. 16. No substantial question of law arises for determination in this case. The proposed questions of law framed by the learned counsel for the appellants are question of facts, which have already been dealt with by the Courts below in their elaborate judgments. 17. As the main suit has been dismissed by both the Courts below, Issue No.3 becomes redundant. R.S.A. No.3124 of 1987 9 18. For the foregoing reasons, there is no merit in the appeal. This appeal fails and is dismissed without costs. ( JITENDRA CHAUHAN ) 11.02.2011 JUDGE atulsethi Note: Whether to be referred to reporter? Yes/No