RSA No.2729 of 1987 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH RSA No.2729 of 1987 Date of Decision: 10.3.2010 Guru Nanak Public Welfare Trust ...Appellant Versus Pritam Singh .....Respondent 1. Whether Reporter of local papers may be allowed to see the judgment- Yes. 2.To be referred to the Reporters or not- Yes. 3. Whether judgment should be reported in the digest-Yes. Coram: Hon'ble Mr. Justice Alok Singh Present: Mr. M.L. Sarin, Sr. Advocate with Ms. Alka Sarin, Advocate for the appellant. None for the respondent. ..... Alok Singh, J. (Oral) 1. This second appeal is filed assailing the judgment and decree passed by First Appellate Court dated 11.5.1987 thereby dismissing the suit of the plaintiff seeking possession of 1005 sq. ft. of land against the defendants. 2. The brief facts of the case are that plaintiff-trust filed the present suit for possession of 1005 sq.ft. of land out of its share in the land bearing Khasra No.340/122 measuring 2 Kanals 7 Marlas as shown in the Jamabandi for the year 1978-79. The case of the plaintiff is that in the absence of plaintiff the defendant has encroached upon the land about three years before the filing of the present suit. The defendant has also constructed two rooms over the land in dispute. As the defendant has not acceded to the request of the plaintiff to hand RSA No.2729 of 1987 2 over the vacant possession of the plot in dispute, hence, suit. 3. Defendants contested the suit and filed written statement, wherein he denied that he is in possession of the land in dispute. But he has contested the claim of the plaintiff inter alia pleading that the plot in dispute is in possession of Smt. Surinder Kaur wife of defendant, who has purchased it from one Sh. Sardar Singh and mutation has been sanctioned in her name. 4. In the replication the plaintiff has denied the assertions made by the defendant in the written statement and has reiterated the averments made in the plaint. 5. Learned trial Court framed following issues:- 1. Whether the plaintiff is owner of the demised land and entitled for the possession of the demised land as alleged in the plaint?OPP. 2. Whether the suit is bad for misjoinder of the parties?OPD 3. Relief. 6. Learned trial Court decreed the suit. However, learned First Appellate Court, having recorded findings of fact that plaintiff failed to prove ownership over the disputed property, dismissed the suit. Consequently first appeal was allowed by First Appellate Court. Judgment of First Appellate Court is impugned herein the second appeal. 7. I have heard learned counsel for the appellant and perused the record. Mr. M.L. Sarin, Sr. Advocate assisted by Ms. Alka Sarin, Advocate argued that findings of the learned First Appellate Court, "it is for the plaintiff to prove that plaintiff is still the owner of the disputed site and that the plaintiff has not mentioned, if the disputed plot has been occupied by the defendant in excess to the area sold, to his wife vide sale deed Ex.D-3 and copy of Jamabandi vide Ex.D-4," is RSA No.2729 of 1987 3 perverse and without any evidence available on record. Mr. Sarin further argued that the moment it is admitted to the defendant that Trust has sold one plot to the predecessor of the defendant and defendant has purchased the same from the vendee of the Trust then it was defendant's duty to prove that he has not occupied any area in excess to the area purchased by him. Mr. Sarin further argued that since public Trust cannot alienate the property, hence, alienation by the Trust in favour of the vandee who has sold it to the defendant's wife is void, hence at this score also plaintiff is entitled to seek possession from the defendant. 8. Undisputedly plaintiff-Trust/appellant sold the property in favour of the Santa Singh. Son of Santa Singh sold the same property purchased from the Trust in favour of the defendant's wife. Since Trust has alienated the property, now Trust is estopped to contend that public Trust cannot alienate the property, hence, sale to Santa Singh which ultimately came in the ownership of defendant's wife is void. In my humble opinion, Trust can alienate the property for legal necessity, hence, unless and until other trustees challenge the alienation on the ground of non-availability of legal necessity, vendor himself cannot challenge the same. 9. The next argument of Mr. Sarin is, since the Trust has sold lesser area as mentioned in the sale deed, hence, it is proved on the record that property in dispute measuring 1005 sq. ft. cannot be a part of sale deed made by the Trust. 10. Learned First Appellate Court has placed reliance on Ex.D1 and Ex.D2 copy of Jamabandis. According to which, Santa Singh and Surinder Kaur are shown owners of 5/83th share in Khasra No.340/122. Plaintiff has not challenged either in pleading or in the ground of appeal that entries in revenue record are wrong. RSA No.2729 of 1987 4 11. Plaintiff has failed to prove that he is still owner of the particular piece of land is a finding of fact. Findings of fact cannot be disturbed by this Court while exercising power Under Section 100 CPC, unless and until any perversity or escape on any important evidence is pointed out after formulation of substantial question of law. 12. In view of the findings of fact recorded by the First Appellate Court, in my opinion no substantial question of law arises, which requires consideration at this stage. Appeal is thus dismissed. (ALOK SINGH) JUDGE 10.3.2010 sharmila