RSA No.3261 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3261 of 2010 (O&M) Date of decision: 18.8.2010 Neelam Devi ......Appellant(s) Versus Ramotar and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Shailendra Sharma, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby her suit for permanent injunction restraining the defendant-respondents from interfering into her possession over the suit property and for a decree of mandatory injunction directing the respondents to remove the illegal construction upon the foundation allegedly filled by the plaintiff and to restore the same in the original condition to hand over the possession thereof to the plaintiff was dismissed. In brief, as per the facts in the suit, the appellant alleged herself to be the owner in possession of the suit land by virtue of registered sale deed dated 9.11.1998 and mutation dated 24.5.1999. It was the further case of the appellant that after the purchase of said property, she constructed a boundary wall and was in possession thereof continuously without any objection. It was alleged that the respondents are influential persons and by misusing their power, they have raised three feet height wall upon the plaintiff's foundation in her absence. The defendants had a mala fide intention for illegally encroaching upon the plaintiff's property which has not been partitioned till date. It was further stated that in RSA No.3261 of 2010 (O&M) 2 furtherance of mutual oral settlement, the plaintiff was in exclusive possession upon the green colour portion as shown in the site plan attached with the plaint. The red colour portion of the site plan was asserted to be part of Killa No.4/1 and was in exclusive possession of the plaintiff. According to her, the said red portion was alleged to have been illegally encroached upon by the defendants. Hence, the suit was filed praying for perpetual permanent injunction restraining the defendants from interfering into the plaintiff's possession upon the suit property and also from raising construction thereupon and to alienate the same. In addition, a decree of mandatory injunction was also prayed directing the defendants to remove the illegal construction upon the foundation filled by the plaintiff and to restore the same to its original condition to hand over the possession thereof to the plaintiff. Upon notice, defendants No.2 and 5 filed written statement raising various preliminary objections. It was asserted that they were bona fide purchasers for valuable consideration as defendants No.2 and 5 had purchased 1/3rd share in the land comprised in Khasra No.133, Rectangle No.221, Killa No.3/2 measuring 3 kanals 6 marlas i.e. I kanal 2 marlas vide registered sale deed dated 27.1.2000. On merits, it was denied that the plaintiff was owner in possession of the suit property by virtue of sale deed dated 14.1.1998. The plaintiff was denied to have any right in Killa No.3/2 as fully described in sale deed of the defendants. It was further submitted that the vendors of these defendants filled the foundation of stones prior to the date of purchase and after the purchase the answering defendants have raised the wall on Killa No.3/2 upto the height of five feet. Defendants No.1, 3 and 4 denied that the plaintiff had purchased 5/100th share of Rectangle No.221, Killa No.4/1. Her possession upon the suit property was also denied. The sale deed dated RSA No.3261 of 2010 (O&M) 3 9.11.1998 and the mutation was alleged to be illegal. They also denied the possession of the plaintiff over the suit land. The site plan of the plaintiff was alleged to be wrong. All other allegations were denied and dismissal of the suit was prayed for. After appraising the evidence on the file and hearing learned counsel for the parties, the trial Court dismissed the suit of the plaintiff. Feeling aggrieved from the judgment and decree of the trial Court, the plaintiff filed an appeal before the Lower Appellate Court which was also dismissed. Still not satisfied, the appellant has filed the instant appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the appellant and perused the impugned judgment and decrees. Both the Courts below, while dismissing the suit of the plaintiff, have found that the plaintiff had filed a simpliciter suit for permanent injunction but admittedly, the defendants were in possession and therefore, the suit was not maintainable. Even before this Court, learned counsel for the appellant could not dispute the fact that the appellant during her cross-examination has admitted the fact that she is not in possession of the suit land. In view of the aforesaid admission of the appellant, no fault can be found with the impugned judgment and decrees of the Courts below. No substantial question of law arises in this appeal. Dismissed. August 18, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.3261 of 2010 (O&M) 4