RSA No.1688 of 2005 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.1688 of 2005 (O&M) Decided on: 29.06.2010 **** Ram Kishan . . . .Appellant Versus Budh Ram and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Deepak Gupta, Advocate for the appellant. Mr.Krishan Kumar, Advocate for the respondents. **** RAKESH KUMAR JAIN, J. Plaintiff is in second appeal against the judgment and decree of the Courts below whereby his suit for declaration and mandatory injunction has been dismissed. The case set up by the plaintiff is that land measuring 26 kanals 10 marlas situated in the revenue estate of Village Sugh Majra is an evacuee property, owned by the State of Haryana, is in his possession for over a period of 30 years continuously, without any interruption, therefore, he has become its owner by way of adverse possession and that the suit land was allotted by the State of Haryana to Jumna, father of defendants No.1 to 3, who did not deposit installments of the allotment, has lost his right, whereas the plaintiff being in possession over the land in dispute requested the State of Haryana to allot him the suit land on reserve price and on the asking of defendant No.6 deposited Rs.3237/- as rent but his RSA No.1688 of 2005 (O&M) - 2 - request has been turned down on one pretext or the other, therefore, he sought a decree for declaration to the effect that he is owner in possession over the suit land and also for decree for mandatory injunction directing the defendant No.6 and 7 to cancel the allotment of suit land in the name of Jumna, father of defendants No.1 to 3 and allot the same to him. Defendants No.1 to 3, defendants No.4 & 5 and defendants No.6 & 7 filed their separate written statements. In the written statement filed by defendants No.1 to 3, it was pleaded that suit land is a part of 94 kanals 16 marlas land allotted to their father on 2.6.1963 with a condition that if they reclaim the land during the period of 20 years then it would be allotted to them permanently. The State of Haryana allotted them 50 kanals of land permanently but the remaining land was yet to be allotted on permanent basis. When the State of Haryana tried to allot the land to some other person, they filed Civil Suit against the State which was decreed. It was pleaded that plaintiff was in possession only over a part of suit land measuring 10 kanals 10 marlas as tenant under them and rest of the land was under self cultivation. It was denied that the plaintiff had acquired any right over the suit land by way of adverse possession. Defendants No.4 and 5 claimed their possession over the land measuring 10 kanals 10 marlas which according to defendants No.1 to 3 was in possession of the plaintiff. Defendants No.6 and 7 denied the possession of the plaintiff over any part of the suit land in the individual capacity rather it was claimed that plaintiff was in possession over the suit land jointly with other persons. They also RSA No.1688 of 2005 (O&M) - 3 - alleged that the Civil Court does not have the jurisdiction to entertain the suit. On the pleadings of the parties, following issues were framed: “(i) Whether the plaintiff is owner in possession of the disputed property by way of adverse possession? OPP (ii) if first issue is proved, whether the plaintiff is entitled for injunction as prayed? OPP (iii) Whether suit is barred by Section 80 CPC? OPD (iv) Whether this court has got no jurisdiction to try and decide the present suit, as alleged? OPD (v) Whether the present suit is not maintainable in the present form? OPD (vi) Whether the plaintiff has no locus standi to file the present suit? OPD (vii) Relief. The trial Court held that the plaintiff was in possession only over a part of suit land measuring 10 kanals 10 marlas as a sub-tenant under defendants No.1 to 3. The plaintiffs claimed that he had acquired ownership rights over the entire suit land by way of adverse possession, which was not accepted. In First Appeal, the plaintiff did not dispute the finding recorded by the trial Court in respect of rejection of his claim of his right of ownership by way of adverse possession as he was found to be in possession as a sub- tenant. The plaintiff then prayed for perpetual injunction to restrain the defendants from interfering into his possession but the same was turned down by the First Appellate Court on the ground that he did not approach the Court with clean hand as he first claimed his RSA No.1688 of 2005 (O&M) - 4 - title over the suit land, being in possession over a period of 30 years, by way of adverse possession and then he sought allotment of the suit land on reserve price. I have heard learned counsel for the appellant, who is at pains to argue that since the appellant is in possession, therefore, the land in dispute should be allotted to him but I am afraid that no such mandatory injunction can be issued in respect of his prayer especially when the plaintiff did not come to the Court with clean hands as he claimed himself to have become owner of the property in dispute by way of adverse possession and secondly he could not refer to any law that land in dispute could be allotted to him by the Court with the issuance of a decree for mandatory injunction. In the peculiar facts and circumstances of this case, I do not find any merit in the present appeal and as such the same is hereby dismissed, though, without any order as to costs. (RAKESH KUMAR JAIN) 29.06.2010 JUDGE Vivek