R.S.A.No.2316 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2316 of 1984 Date of Decision:25.09.2008 Mohd.Suleman and others .....Appellants versus Abdul Gaffur and others .....Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr.R.K.Battas, Advocate, for the appellants. Mr.Arun Palli, Senior Advocate with, Mr.Jai Bhagwan, Advocate, for the respondents. **** AJAY KUMAR MITTAL, J. The defendants feeling aggrieved against the judgment and decree dated 01.06.1984 passed by the lower appellate Court modifying the judgment and decree dated 12.11.1981 passed by the trial Court whereby the suit of the plaintiffs for joint possession of the suit property was decreed, have approached this Court by way of the present regular second appeal. Succinctly put the facts of the case are that the plaintiffs were the residents of Mohalla Tellian at Malerkotla and the suit property shown by letters 'ABCDEFGH' in the site plan attached with the plaint and situated in Mohalla Tellian, was joint property of the entire Mohalla and was being used for common purposes of the Mohalla, viz. marriages, deaths mourning and other occasions. It was pleaded that in November, 1978, R.S.A.No.2316 of 1984 -2- defendants No.1 to 4 tried to raise construction on the site in question, whereupon the matter was reported to the police and a compromise was arrived at between the parties whereby the defendants admitted that they had no right or title over the suit property and that they would not raise any construction thereon. It was further pleaded that in January, 1979, in spite of the compromise aforesaid, the defendants took the possession of the suit property forcibly and raised wall thereon at places 'AB' and 'BC' and also threatened to raise further construction thereon which gave rise to the filing of a suit for joint possession of the suit property and as a consequential relief for permanent injunction restraining the defendants from raising any construction thereon. The claim of the plaintiffs was resisted by the defendants by raising various preliminary objections in the written statement filed by them. It was pleaded that neither the suit property was situated in Mohalla Tellian nor was the same ever used for common purposes like marriages, deaths mourning or other ceremonies by the plaintiffs or other people of the Mohalla. Rather, it was exclusively owned by the defendants. According to the defendants, they never entered into any compromise and if there is any compromise as alleged, the same was never read over to them. It was also pleaded that they had purchased their respective houses from the private persons and the custodians and were in possession thereof as owners and as such were entitled to raise construction thereon. In the alternative, the defendants also claimed ownership of the suit property by way of adverse possession. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the trial Court framed the following issues as well as additional issues:- Issues:- “1. Whether the plaintiffs are residents of Mohalla R.S.A.No.2316 of 1984 -3- Tellian?OPP 2. Whether the plaintiffs are owners of the suit property?OPP 3. Whether the defendants have no locus standi to file the present suit?OPD 4. Whether the suit of the plaintiffs is not maintainable in the present form?OPD 5. Whether the defendants had purchased the suit property from different persons?OPD 6. Relief. Additional Issues:- 5A. Whether the plaintiffs have a right to use the site in dispute?OPP 7. Whether the defendants have become the owners of the suit property by adverse possession?OPD 8. Whether the signatures and thumb impressions of the defendants were obtained on the compromise, if any under the pressure and on blank papers and the defendants never entered into any compromise regarding the suit property? If so its effect?OPD 9. Whether the suit is not valued properly for the purposes of court fee and jurisdiction?OPD 10. Relief. 1A. Whether the suit property is situated in Mohalla Tellian, Malerkotla, if so its effect?OPP” The trial Court on appreciation of the oral as well as the documentary evidence adduced by the parties decided issues No.1 and 1- A separately in favour of the plaintiffs holding that the plaintiffs were the residents of Mohalla Tellian and the suit property was situated therein. R.S.A.No.2316 of 1984 -4- The trial Court took issues No.2,3,5,5-A and 8 together being inter- connected and decided the same in favour of the plaintiffs and against the defendants holding that the plaintiffs and other inhabitants of the Mohalla were using the suit property for common purposes such as marriages and death mourning etc. and that the same was not the ownership of the defendants having been purchased from the different persons as alleged by them. Issues No.4, 7 and 9 were also decided in favour of the plaintiffs. The trial Court vide judgment and decree dated 12.11.1981 decreed the suit of the plaintiffs by passing a decree for joint possession of the suit property in their favour. Feeling aggrieved, the defendants approached the lower appellate Court which vide judgment and decree dated 01.06.1984 dismissed the appeal with modification in the decree passed by the trial Court to the extent that the plaintiffs instead of being joint owner in possession of the suit property had a right to use the same because the suit property was held to be vested in the residents of the Mohalla, including the defendants, and the defendants were directed to demolish the two walls constructed by them on the suit property so as to restore the same to its original condition. The defendants were further restrained from raising any construction on the suit property, from possessing it exclusively and from excluding the plaintiffs and other residents of Mohalla Tellian from using the same for common purposes and for holding social functions or gathering thereon. Still feeling aggrieved, the defendants have approached this Court by way of present regular second appeal. I have heard learned counsel for the parties and have gone through the record very carefully. Learned counsel for the appellants has submitted that the Courts below have wrongly decreed the suit of the plaintiffs by mis-reading the evidence adduced by the parties. He has further submitted that the judgments and decrees passed by the courts below are liable to be R.S.A.No.2316 of 1984 -5- reversed and the suit of the plaintiffs deserves to be dismissed. On the other hand, learned counsel for the respondents while supporting the judgments and decrees passed by the Courts below has submitted that the suit of the plaintiffs had rightly been decreed and calls for no interference by this Court in the regular second appeal. The trial Court on appreciation of the evidence led by the parties returned a finding that the plaintiffs were the residents of Mohalla Tellian and the suit property was situated therein and was being used for the common purposes like marriage, deaths mourning and other ceremonies etc. The aforesaid findings of the trial Court were affirmed by the lower appellate Court in appeal further declaring that the parties to the litigation along with other inhabitants of the Mohalla had a right of user of the suit property whenever the occasion arose and the plaintiffs could not be granted a decree for joint possession of the suit property as they failed to establish their title over the same and similarly the defendants had also failed to prove their ownership overthere. The lower appellate court further rightly directed the defendants to demolish the two walls which were constructed by them on the suit property and also restrained them from raising any fresh construction on the disputed property and accordingly modified the decree of the trial court. Learned counsel for the appellants failed to point out any illegality or perversity in these findings recorded by the Courts below warranting interference by this Court in the regular second appeal. In view of what has been stated above, the present appeal fails and is hereby dismissed with no order as to costs. September 25, 2008 (AJAY KUMAR MITTAL) gbs JUDGE