RSA No.714 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.714 of 2011 (O&M) Date of decision 7.7.2011. Raj Singh ...... Appellant. versus State of Punjab and another ...... Respondents. Present : Mr. Arvind Kashyap, Advocate for the appellant. K.C.PURI . J. This is an appeal directed by plaintiff/appellant against the judgment and decree dated 19.7.2010 passed by Shri Tejwinder Singh, learned Additional District Judge, Gurdaspur vide which the appeal preferred by the defendants/respondents was accepted and suit of the plaintiff for mandatory injunction directing the defendant to hand over the possession of suit land and in the alternative to hand over the vacant possession of the land was dismissed. Briefly stated the plaintiff filed suit for mandatory injunction directing the defendants to hand over the vacant possession after removal of RSA No.714 of 2011 2 pucca road from the land as described in the heading of the plaint after demolishing pucca road and in the alternative handing over the vacant possession of the land where the road as per revenue record exists by way of exchange situated in same village. It is alleged that plaintiff is the owner of the land mentioning in the heading of the plaint. The defendants have illegally and unlawfully constructed the pucca road in the aforesaid land without paying any compensation or acquiring the same since long. Prayer has been made for handing over the possession of the suit land after removing the pucca portion of the road and in the alternative providing other land in lieu of the above said khasra numbers. The defendants have filed written statement denying the contents of plaint. Preliminary objections of limitation, estoppel, cause of action were taken. However, it is pleaded that road was constructed in the year 1973. Initially, the same was maintained by Zila Parishad since the year 1967-68 and in the year 1973 the maintenance of the road was handed over to PWD Department. No notice under Section 80 CPC was served. Otherwise also, the allegations made in the plaint were totally denied. Replication was not filed. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is entitled for mandatory injunction as prayed for ? OPP 2. Whether the suit of the plaintiff is not maintainable ?OPD 3. Relief. In order to prove its case, plaintiff examined Ram Kishan as (PW-1), Mohan Lal as (PW-2), Prabh Dyal Singh as (PW-4), Jaswant RSA No.714 of 2011 3 Singh as (PW-5) while himself appeared as his own witness as PW-3. The evidence was closed after tendering certain documents. In rebuttal, the respondent examined Rajinder Kumar Sahdev, SDE Construction Sub Division No.2 as DW-1. The learned trial Court after appraisal of the evidence decided issue No.1 in favour of the plaintiff and against the defendant. Issue No.2 was not pressed before the trial Court and consequently was decided against the defendants and the suit of the plaintiff was decreed. Feeling dissatisfied with the judgment and decree dated 15.11.2007 passed by Shri Avtar Singh Barda, Civil Judge (Junior Division), Pathankot, the defendants/ State and others filed appeal and the said appeal was accepted and suit of the plaintiff was ultimately dismissed vide judgment dated 19.7.2010 Feeling dissatisfied with the judgment dated 19.7.2010 passed by First Appellate Court vide which the suit of the plaintiff was dismissed, the plaintiff has preferred the present regular second appeal. The plaintiff/appellant in para No.7 of the grounds of appeal has mentioned that following law points are involved in the present appeal :- (i)Whether the Ld. First Appellate Court can reverse or give a finding on issue not framed by the Ld. Trial Court or Ld. First Appellate Court ? (ii)Whether the suit of the plaintiff seeking possession being owner of property basing his claim on title is governed by period of limitation? (iii)Whether the service of notice under section 80 of CPC on the State is compliance of the provisions qua the subordinate authorities of State? RSA No.714 of 2011 4 (iv)Whether the nonjoinder of other co-sharers is fatal to the present suit in question, once there was no issue regarding the same? V. Whether the plaintiff can be divested of his property, forcibly and arbitrarily, without following law and awarding compensation ? Learned counsel for the appellant has submitted that appellant/plaintiff is owner of the suit property as cosharer. The road has been constructed at the land of plaintiff without any compensation though in the year 1973. There is no limitation for filing the suit on the basis of title. The learned trial Court has dismissed the suit mainly on the ground that plaintiff has failed to prove his ownership and as much as he has stated that partition has taken place. The plaintiff cannot be evicted from his property forcibly and without following law. I have carefully considered the said submission and have gone through the records of the case. It is not disputed before the trial Court as well as before this Court that metaled road was constructed in the year 1973 and the present suit was filed in the year 2001 i.e., after more than 28 years. The learned trial Court has observed that plaintiff has admitted that there was partition and document regarding partition has not been filed. So, the locus standi of the plaintiff has not been held to be proved. The plaintiff can sue only if he is able to prove that in partition, the suit property has fallen to his share and that fact is missing. The questions mentioned in paragraph No.7 of the grounds of appeal as detailed above does not arise for consideration in the present appeal. The finding of fact has been recorded by the First Appellate RSA No.714 of 2011 5 Court and that cannot be challenged in the regular second appeal in view of Section 100 CPC. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 07, 2011 sv