R.S.A. No.859 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.859 of 2009 Date of Decision:18.07.2011 Lehari Singh and others ......Appellants Versus State of Haryana and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Harkesh Manuja, Advocate, for the appellants. Mr.Anjum Ahmed, Additional Advocate General, Haryana **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, which require to be noticed for the limited purpose of deciding the sole controversy, involved in the instant appeal and emanating from the record are, that Lehari Singh, Ram Mehar sons of Bhola Ram and Rajbir Singh son of Munshi Ram-appellant-plaintiffs(hereinafter to be referred as “the plaintiffs”) filed the suit for permanent injunction, restraining the State of Haryana and its officers-respondent-defendants(for brevity “the defendants”) from interfering, in any manner, from changing the nature and alternatively, a decree for mandatory injunction, for restoration of the suit land to its original condition. 2. The case set up by the plaintiffs, in brief, insofar as relevant was, that they are co-sharers along with other co-sharers in the agricultural land in dispute. There is a kacha passage of 5 Karam i.e. 27 feet 6 inches in width, leading to village Jharoda from the village Naya Gaon. It was alleged that the defendants are constructing pucca road over the said kacha rasta and threatened them to dig earth, to merge their adjoining land in pucca road, without any legal right. On the basis of aforesaid allegations, the plaintiffs filed the suit for permanent/mandatory R.S.A. No.859 of 2009 2 injunction against the defendants, in the manner depicted hereinabove. 3. The defendants contested the suit and filed their joint written statement, inter alia, pleading certain preliminary objections of, maintainability of the suit, jurisdiction of the civil court, objection of Section 204 of the Haryana Panchayati Raj Act, 1994, cause of action and locus standi of the plaintiffs. On merit, the defendants have denied the ownership of the plaintiffs in the suit land. It was explained that already existing rasta bearing Nos.96, 97, which is 27½ feet wide, was demarcated in the presence of the plaintiffs and they(defendants) are constructing the pucca road on it, as per demarcation report for the welfare of the plaintiffs as well as other inhabitants of the village and public at large. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the controversy, as depicted in its judgment and the case was slated for evidence of the plaintiffs. 5. The parties to the lis in order to substantiate their respective stands, brought on record oral as well as the documentary evidence. 6. The trial Court, after taking into consideration the entire oral as well as the documentary evidence brought on record by the parties, dismissed the suit of the plaintiffs by way of impugned judgment and decree dated 11.05.2006. 7. Aggrieved by the decision of the trial Court, the plaintiffs filed the appeal, which was dismissed as well by the first Appellate Court by virtue of impugned judgment and decree dated 26.04.2008. 8. The plaintiffs still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 9. After hearing the learned counsel for the parties, going through the R.S.A. No.859 of 2009 3 record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the appeal in this context. 10. Ex facie, the argument of the learned counsel that the plaintiffs are co-owners of the land in dispute and since, the defendants are laying pucca road over the rasta in question and intend to merge their land into the road, without any acquisition, so, the Courts below ought to have decreed their suit, lacks merit. 11. As is evident from the record that, the plaintiffs are not the exclusive owners, or in possession, but they are only co-sharers in the land. A kacha passage of 27½ feet in width, was already existed, on which the defendants are paving pucca road for the use of public at large. The plaintiffs have miserably failed to prove that they are exclusive owners of the disputed portion. Once, the defendants are paving a pucca road on the already existed passage, then it cannot possibly be saith that the plaintiffs are aggrieved by construction of the road, in any manner. 12. Having completed all the codal formalities and on ultimate analysis of the evidence on record, the trial Court has recorded a finding of fact that as per Jamabandi Ex.PW1/B, Lehari Singh-plaintiff No.1 has been shown as owner in possession of the land measuring Killa No.40/3(4K-19M) and 41/19/2 (7K-7M), whereas Ram Mehar-plaintiff No.2 has been shown as owner in possession of Killa No.47/12 (5K-4M), 18 (6K-12M). Sequelly, Rajbir-plaintiff No.3 along with other persons has been shown as co-owner in possession of Killa No.48/4/2 (5K- 17M). The remaining land in dispute has been shown to be owned and possessed by some other co-owners. It was held that as per Jamabandi for the year 1990-91, the present plaintiffs were not shown to be co-owners and some other co-sharers have been described as its co-owners. 13. It is not a matter of dispute that the land of plaintiff No.1 has already been acquired by the State Government. The mere fact that some of the co-owners have challenged the acquisition, by filing the Civil Writ Petitions under Articles 226/227 of the Constitution of India in this Court, ipso facto is not a ground to R.S.A. No.859 of 2009 4 disentitle the defendants, to construct the pucca road, for the welfare of the public in performance of their official duties. The remaining plaintiff Nos.2 and 3 did not dare to step into the witness box, to substantiate their case. Therefore, to me, the trial Court has rightly dismissed their suit. 14. Not only that, the judgment and decree of the trial Court were also upheld by the first Appellate Court, by means of impugned judgment and decree dated 26.04.2008, the operative part of which is, as under:- “The plaintiff No.1 Lehari who appeared as PW5 stated that his land has been encroached upon but his statement is not going to further his case as he himself admitted that after the earth was extracted and the same was put on the passage he did not get any demarcation at the site. No doubt he stated that his land has been encroached upon but when this land has since been acquired by the government the plaintiff can maximum seek the compensation therefor but he could not seek the injunction prayed for nor he could seek the mandatory injunction as he was not entitled to seek possession of this land after publication of the notification under Section 6 of the Land Acquisition Act. Things did not end here. After scanning the testimony of Lehari Singh plaintiff as PW5, the whole case of the plaintiffs crumbles down like a castle of cards. He admitted that there exists a 27'-6” wide passage comprised in Khasra Nos.96 and 97. It was further admitted by him that even after filling with earth ¾' wide space was left out of this passage as open. When that is so it can not be taken that the defendants have encroached upon the plaintiffs' land as claimed by them. This plaintiff seems to be worried about the interest of others as he is not at all the owner of the land with regard to which he has claimed the relief of injunction. In these premises, there is nothing on file to proceed against any of the respondents under Order 39 Rule 2A of the Code of Civil Procedure. The lower court was justified in dismissing this application.” 15. No other meaningful argument has been raised by the learned counsel for the appellant-plaintiffs, to assail the findings of the Courts below. All the remaining contentions, relatable to the appreciation of evidence, now sought to be urged on their behalf, have already been duly considered and dealt with by the Courts below, in this relevant behalf. R.S.A. No.859 of 2009 5 16. Moreover, having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the above indicated concurrent finding of facts. Such judgments, containing the valid reasons, cannot possibly be interfered with by this Court, while exercising the powers conferred under Section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well-articulated decision arrived at by the Courts below, in this context. 17. Neither any question of law, much less substantial, is involved in this regular second appeal, nor any other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 18. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. July 18, 2011 (MEHINDER SINGH SULLAR) seema JUDGE