Regular Second Appeal No.2372 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2372 of 2008 Date of Decision: July 10, 2009 Sanjay Singhal ...........Appellant Versus Suresh Chand and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sandeep Panwar,Advocate for the Appellant. Mr.Sumeet Mahajan, Senior Advocate with Mr.Sham Lal Bhalla, Advocate for the respondents ** Sabina, J. Plaintiffs filed a suit for permanent injunction against the defendants on the ground that plaintiff No.1-Suresh Chand is Power of Attorney Holder of plaintiffs No. 2 to 8 and capable of filing the present suit. The Additional Civil Judge, Senior Division, Faridabad decreed the suit of the plaintiffs vide judgment and decree dated 25.9.2006. Aggrieved by the same, defendants preferred an appeal. The said appeal was dismissed by the Additional District Judge Fast Track Court, Faridabad vide judgment and decree dated 11.3.2008. Hence, the present appeal. The case of the parties, as noticed by the learned Additional Distinct Judge in paras 2 and 3 of its judgment reads as under:- “ 2. Brief facts of the present case are that the plaintiff No.1 is Power of Attorney Holder of plaintiff No.2 to 8 and capable of filing the present suit. Bishamber Dayal son of Nanak Chand father of plaintiffs no. 1 to 4 and 6 to 8 and husband of plaintiff Regular Second Appeal No.2372 of 2008 2 no.5 died on 7.9.1986 Shri Bishamber Dayal was in actual physical possession of the suit property as owner. Suit property is mentioned with letter ABCD as shown in colour red in the site plan which is bounded as under:- North: House of Sh. Jai Parkash East: Rasta West:Other Property of the plaintiffs South:Rasta Share aam Defendant no.3 had executed an agreement to sell dated 12.3.1975 in favour of Sh.Bishamber Dayal and the possession of the suit property was rendered in favour of Shri Bishamber Dayal who also raised the construction on the suit property in the year 1973 after getting the site plan sanctioned from the Municipal Committee, Faridabad. There had been a family settlement between the plaintiff and the property in suit has come to the share of plaintiff No.1 to 4, who have already been recorded as owner in possession of the suit property in the assessment of the house tax entries in the year 1997-98. The plaintiff through their predecessor in interest are in peaceful possession of the suit property for the last 40 years and defendants have no concern with the suit property. The defendants are trying to interfere in their possession from which they failed to desist. Hence, plaintiff being aggrieved filed the present suit. 3.Defendant contested the suit and filed the written statement , wherein preliminary objections qua locus standi, maintainability, cause of action, and concealment of facts etc. were raised. On Regular Second Appeal No.2372 of 2008 3 merits, it is denied that the plaintiffs are owners of the property in question. Defendant no.3 never entered into alleged agreement to sell dated 12.2.1975 nor received a sum of Rs.25,500/- towards full sale consideration from Sh.Bishamber Dayal. The suit property is situated in ward No.5 Brahama wara, within the Lal Dora of Muaza Ballabgarh. It is denied that the plaintiff through their predecessor in interest have been in peaceful possession without any obstruction for the last 40 years over the suit property. Other pleas of the plaint were controverted and dismissal of the suit prayed for. On the pleadings of the parties, the following issues were framed by the trial Court :- “1. Whether the plaintiffs are owner in possession of the suit property?OPP 2. Whether the suit is not maintainable in the present form?OPD 3. Whether the plaintiffs has no cause of action and locus standi to file the present suit?OPD 4. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that this appeal deserves to be dismissed. Plaintiffs had filed a suit for permanent injunction restraining the defendants from interfering in the peaceful possession and enjoyment of the plaintiffs over the suit property marked by letters `ABCD' in the site plan. In order to prove their case, plaintiffs examined Mehtab Singh as PW1, who produced sale deed dated 19.7.1974 (Exhibit P27). Regular Second Appeal No.2372 of 2008 4 PW3 Dhan Singh proved the copies of assessment of house tax,demand house tax, notice and payment. PW4 Yatinder Pal Singh, Clerk proved the letters issued by the Municipal Committee sanctioning the site plans Exhibits P13 to P20. Suresh Chand, plaintiff No.1 appeared in the witness box as PW7. His statement is duly corroborated by PW5 Omkar. The case of the plaintiffs is that the suit property had come to them by way of a family settlement and they were in possession of the same. The factum of ownership and possession of the suit property was admitted by Om Parkash, predecessor in interest of the appellant. A perusal of the agreement to sell Exhibit P22 reveals that the plot in question owned by Bishamber Dayal has been described on the eastern side of the plot regarding which agreement to sell was executed. In order to prove the due execution of the agreement to sell, Exhibit P22, plaintiffs examined Omkar PW5, attesting witness to the said agreement. Omkar is none other than the real brother of Om Parkash who had executed the agreement to sell, Exhibit P22 in favour of Bishamber Dayal. PW2 Somnath Aggarwal, handwriting expert has proved his report as per which the signatures on the agreement to sell of Om Parkash matched with his standard signatures. Thus, the Courts below rightly held that the agreement to sell was executed by Omkar in favour of Bishamber Dayal. He has admitted ownership and possession of Bishamber Dayal with regard to the plot on the eastern side of the property agreed to be sold vide agreement to sell Exhibit P22. In order to further substantiate their claim, plaintiffs also proved on record the house tax entries in the register. They also proved on record notices issued to Bishamber Dayal and objections filed by him with regard to demand of house tax, Exhibits P9 and P11 and payment thereof vide Exhibits P10 and P12. Site plan was also got Regular Second Appeal No.2372 of 2008 5 sanctioned with regard to the property in dispute from time to time and they were proved on record as Exhibits P13, P16, P18 and P20. Notices were also issued to Bishambar Dayal regarding illegal construction raised by him. In these circumstances, the Courts below rightly held that the plaintiffs had been successful in proving that they were in possession of the property in dispute. Defendants, on the other hand, have failed to establish that they had any better title than the plaintiffs. The Courts below had, thus, rightly decreed the suit of the plaintiffs for permanent injunction. No substantial question of law arises in this regular second appeal. Accordingly, this appeal is dismissed. ( Sabina ) Judge July 10, 2009 arya