RSA No.243 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.243 of 2010(O & M) Date of Decision:02.08.2010 Municipal Corporation, Faridabad & anr. .... appellants Versus Sanjay & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Pradip Bhandari,Advocate for the appellants **** RAKESH KUMAR GARG J. CM No.747-C of 2010 For the reasons mentioned, delay of 20 days in re-filing this appeal is condoned. CM disposed of. RSA No.243 of 2010 This is defendants' second appeal challenging the judgment and decrees of the courts below, whereby suit for permanent injunction filed by the plaintiff-respondents was decreed, restraining the appellants from dispossessing the respondents from the house in question and also from demolishing the said house with further direction to the plaintiff- respondents not to grab the land of the appellants. According to the respondents, they were owners in RSA No.243 of 2010(O & M) 2 possession of the suit property which is located within the Abadi Deh of village Sarain Khawaja, Tehsil and District, Faridabad, as per the site plan annexed with the plaint it was alleged to be an ancestral property of the plaintiffs. Appellants were quite strangers to the suit property but were not bent upon to demolish the said house, illegally and forcibly. Thus, by way of present suit, decree for permanent injunction restraining the appellants from demolishing the suit house and dispossessing the plaintiff- respondents from the said house was sought. In the written statement, appellants took a stand that disputed house does not fall within the limits of Lal Dora of village Sarain Khawaja. Rather, the said property falls within the revenue estate of village Palla comprising in Khasra No.7 Killa No.17,24,12 which was owned by the appellants and the plaintiffs-respondents had illegally encroached upon the same and had raised unauthorized construction thereon. It was further stated that earlier construction on the disputed property in the shape of shops on public road was dismantled but under the cover of this suit and after obtaining status quo order, plaintiffs have constructed the house, illegally and encroached upon the land of the appellants. Other averments of the plaint were controverted and dismissal of the suit was prayed. Both the courts below on appreciation of evidence recorded a finding of fact that the plaintiffs-respondents were in possession of the suit land and the appellants have failed to prove that the respondents have encroached upon the land of appellants. Consequent upon the aforesaid findings, impugned decree was passed in favour of the plaintiff- respondents with further direction not to grab the land of the appellants under the garb of this suit. Still not satisfied, the appellants have come to this Court challenging the judgment and decrees of the Courts below submitting that RSA No.243 of 2010(O & M) 3 the following substantial questions of law arise in this appeal: 1. Whether the courts below are justified to pass decree for injunction in case where the plaintiffs/respondents failed to establish the title on the property in dispute? 2. Whether the courts below are justified in decreeing the suit of the plaintiff where the construction raised by the plaintiff after getting the status quo order? 3. Whether the courts below are justified to come to the conclusion that property in dispute falls within the lal dora of the village Sarain Khawaja, Tehsil and District Faridabad? 4. Whether the decree passed by the courts below is justified in the facts and circumstances of the case where no evidence has been lead by the plaintiff/respondent? In support of the aforesaid alleged substantial questions of law, learned counsel for the appellants has argued that the courts below have erred in law in not appreciating the fact that respondents failed to prove their ownership over the land in question but the courts below on the basis of illegal possession passed the decree of permanent injunction and no liberty was given to the appellants for taking possession from the illegal encroachers as per law. In support of the aforesaid arguments, learned counsel for the appellants has relied upon a judgement of this Court in Balraj Singh vs.Mahan Singh 1987 P.L.J. 51, to contend that if the court is not able to give a definite finding on the point of ownership, in that situation it can leave the point of ownership open to be gone into in appropriate proceedings and the suit can be disposed of on the basis of possession, only. I have heard learned counsel for the appellants, perused the RSA No.243 of 2010(O & M) 4 impugned judgment and decrees and the judgment cited at the bar. It may be noticed that in the case of Balraj Singh(Supra) though the point of ownership and possession was in dispute, however none of the parties was able to prove its point of ownership and in that situation, the aforesaid judgment was passed. However, the aforesaid judgment is not applicable in the facts and circumstances of the present case as in the present case, it was the definite case of the plaintiff- respondents that appellants are complete strangers to the suit property, whereas the appellants had taken a specific stand that they were owners of the suit property and the appellants have encroached upon the same. However, a finding of fact has been recorded by the courts below that the defendants utterly failed to prove their title over the suit property or the fact that the said property comprised in Khasra No.7 Killa No.17,24,12 in the revenue estate of village Palla as was alleged by them. It is well settled that a person in possession of immovable property has a right to protect his possession against any person who has no better title than him. The contention as raised before this Court was also raised by the appellants before the Lower Appellate Court and the judgement relied upon by this Court was also cited. However, the aforesaid contention had not been found favoured with. Learned counsel for the appellants was unable to substantiate his argument before this Court by citing any other judgement before this Court. Moreover, the appellants could have been given this liberty to dispossess the plalintiffs-respondents by following due course of law only if they had proved on record their right in the suit property. In the absence of any right, title or interest in the suit property they have no locus to evict the plaintiffs-respondents. It may also be mentioned, at this stage that appellants have not raised any arguments with regard to the findings of the Lower Appellate Court with regard to their title. RSA No.243 of 2010(O & M) 5 No other point was argued. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 02.08.2010 neenu