R.S.A.No. 335 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 335 of 2008 (O&M) Date of decision: 16.11.2009 Sidhu Ram ......Appellant Versus Girdhari Lal and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.B.R.Vohra, Advocate, for the appellant. Mr.Pankaj Jain, Advocate, for the respondents. **** SABINA, J. Plaintiff Sidhu Ram filed a suit for permanent injunction, which was dismissed by the Additional Civil Judge (Sr.Divn.), Gurgaon vide judgment and decree dated 24.4.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, Gurgaon vide judgment and decree dated 13.9.2007. Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in para Nos.2 to 4 of its judgment, are as under:- R.S.A.No. 335 of 2008 (O&M) 2 “2. That plaintiff is owner in possession of plot No.EP 198-99A marked by letters CDHG shown in yellow and red colour in the site plan annexed with plaint. Vide registered sale deed dated13.10.1965; that he has been coming in peaceful and continuous possession of the aforesaid property since the date of its purchase; defendants are threatening to take possession of portion CDEF (shown with red colour in the site plan), detailed in para No.3 of the plaint and hereinafter called suit property, without any right or authority. It was averred that in order to grab the property of plaintiff, defendant No.2 filed the suit for possession against defendant No.1 claiming to be owner of property EP 201 and also claiming property No.EP 198-99A of the plaintiff, to be part and parcel of property EP 201 regarding wall AB points of which civil suit is pending in the court of Ms. Sunita Grover, the then Civil Judge (JD), Gurgaon titled as Sewa Ram vs. Girdhari. It was further averred that when plaintiff came to know about the pendency of that litigation he moved application under Order 1 Rule 10 CPC, but application was rejected and plaintiff was advised to file separate suit; that after dismissal of his application, he made request to defendants to withdraw that suit and not to interfere in his possession in any R.S.A.No. 335 of 2008 (O&M) 3 manner, but of no use; on or about 16.9.2000 defendants have flatly refused to accede his request, hence, the present suit. 3. Notices were served upon the defendants. Defendant No.1 filed his separate written statement and reply to the injunction application. Certain primarily objections were taken regarding maintainability, cause of action, estoppel etc. On merits, almost all other averments of plaintiff have been denied and it has been contended that the suit property owned and possessed by answering defendant and it is part and parcel of EP No.190. It was emphasized that there is no rasta Aam shown by plaintiff in the North because alleged rasta amm is in fact part and parcel of EP No. 190 belonging to answering defendant. Answering defendant admitted ownership of plaintiff qua flat No. EP No. 198-99A, vide sales deed dated 9.9.65. It was emphasized that suit property is part and parcel of EP No.90. It was prayed that suit of plaintiff be dismissed with costs. 4. Separate written statement on behalf of defendant No.2 has been filed primarily objecting the maintainability of the suit for want of locus standi and suit is bad as plaintiff has concealed the true and material acts. R.S.A.No. 335 of 2008 (O&M) 4 On merits, again all averments were denied and it was submitted that in fact the plot No.198-99A is the portion EFGH shown in yellow colour in which residential house of plaintiff is constructed and has a rasta on the main road towards West. The portion shown in red colour is a separate plot which is owned and possessed by the answering defendant. It was contended that the portion shown as ABCG in black colour is not at all rasta aam but is a property of the answering defendant being part of EP 201. It was admitted that the plaintiff purchased his plot shown in yellow colour, vide sale deed dated 13.10.65. The sale deed in respect to the yellow portion only and it has no concern with the plot shown in red colour. Both the plots have different identity. Hence, defendant No.2 also prayed for the dismissal of the suit. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is owner in possession of the suit property as alleged? OPP 2. Whether the plaintiff is estopped to file the present suit by his own act, conduct admissions and latches? OPD 3. Whether the present suit is not maintainable in R.S.A.No. 335 of 2008 (O&M) 5 the present form? OPD 4. Whether the plaintiff has no cause of action to file the present suit? OPD 5. Whether the suit of the plaintiff is collusive between plaintiff and defendant No.2 as alleged in pra No.5? OPD 6. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff filed a suit for permanent injunction that defendants be restrained from interfering in his peaceful possession. The plaintiff claimed that he was owner in possession of plot No.198-99A marked with letters CGHD in the site plan. The case of the plaintiff further is that he had purchased the suit property vide sale deed dated 13.10.1965. The defendants have not disputed the ownership of plaintiff over the portion shown in yellow colour marked with letters GFEH in the site-plan. As per the defendants, the said portion belonged to the plaintiff. However, it was disputed that the portion shown in red colour marked with letters EFCD belonged to the plaintiff. The defendants proved on record the site plan submitted by the plaintiff to the Municipal Committee for sanction of the same before raising construction. Learned Additional District Judge in the impugned judgment, with regard to the said site plan, has observed as under:- R.S.A.No. 335 of 2008 (O&M) 6 “12. The plaintiff when appeared in the witness box, in the cross-examination admitted that he got the site plan approved from the Municipal Committee for the disputed land and admitted that the application Ex.D-2 was moved to the Municipal Committee and again admitted that Ex.D-3 is the copy of the sanctioned plan and again admitted that the copy of conveyance deed Ex.D-1 was attached with the application Ex.D-2. When the site plan was got passed and it was again admitted that the site plan was approved vide resolution Ex.D-4. In the cross-examination, it was again admitted by PW-1 plaintiff that for first floor, the site plan was got passed and the site plan Ex.D-5 was admitted to be correct. 13. Now, it becomes the admitted case of the parties that on the basis of sale deed Ex.PA/D!, the plaintiff submitted application for the sanction of site plan Ex.D-2 and the site plan was sanctioned and in the site plan Ex.D-3, the boundaries of the disputed property have been shown as 32 x32 feet and in the site plan Ex.D-5, the boundaries have been shown to be 30-6 feet x 28-6 feet on Northern and Southern side and on Western side, the boundary has been shown to be 20 feet. If site plan Ex.D-3 and Ex.D-5 are compared with site plan Ex.PW1/A, the site plan filed R.S.A.No. 335 of 2008 (O&M) 7 along with the suit then it is apparently clear that site plan Ex.PW1/A is for the property having the area double as given in Ex.D1, EX.D3 and Ex.D5 and as such, the disputed property shown in red with letters CDEF in site plan Ex.PW1/A could not be proved to be part of the property purchased vide sale deed Ex.PA site plan Ex.D-3 was got approved and in the site plan, the area is 32 x 32 feet and as such, on the basis of sale deed Ex.PA, property shown with red colour and letters CDEF could not be proved to be the property of the plaintiff as except sale deed Ex.PA, no documentary evidence is there and for the property shown in yellow colour, defendants themselves are not disputing the ownership and title of the plaintiff and it is not the case of the plaintiff that the site plan was submitted for half of the property purchased vide sale deed Ex.PA, whereas, plaintiff himself is admitting to have submitted the site plan for the property purchased vide sale deed Ex.PA and as such, the plaintiff could not prove the title and possession over the red portion shown in site plan Ex.PW1/A.” In these circumstances, learned Additional District Judge, after appreciating the evidence led by the parties on record, has given a finding of fact that the portion shown in red colour, in fact, R.S.A.No. 335 of 2008 (O&M) 8 was not in possession of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 16, 2009 anita