Civil Revision No. 4156 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4156 of 2010 (O&M) Date of decision: 27.07.2010 Kewal Singh ....Petitioner Versus PWD Kapurthala and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Padam Jain, Advocate, for the petitioner. Mr. N.S. Virk, Addl. A.G., Punjab. Mr. Hitesh Kaplish, Advocate, for respondent No.4. ***** VINOD K. SHARMA, J (ORAL) The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the order dated 14.6.2010 passed by the learned Courts below vide which the application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure, seeking injunction against his dispossession, was ordered to be dismissed. The petitioner filed a suit for permanent injunction, restraining the defendant/respondents, from dispossessing the petitioner from the land in dispute except in due course of law. The case set up by the plaintiff/petitioner was, that he was in possession of the land bearing khasra No1778/18-6, khata/khatauni No.1515/2263 as per jamabandi for the year 2003-04 situated in Phagwara Sharki, Tehsil Phagwara. The petitioner claimed that there were three houses, one cattle room, khurlies, room, store, poultry yard, chaff cutter room, water tank, tubewell and open space under cultivation, handpump, bathrooms were Civil Revision No. 4156 of 2010 (O&M) -2- also shown to be in existence in the site plan attached. It was also pleaded, that the defendants be restrained from changing the nature of the property and raising any sort of construction thereon forcibly and illegally. The possession was claimed by the petitioner to be with him since last hundred years since his ancestors. The property was said to be owned by Maharaja Kapurthala, it was asserted that father of the plaintiff/petitioner and his brothers spent Rs.50,000/- (Rupees fifty thousand only) for development and improvement of the land and further Rs.10,00,000/- (Rupees ten lac only) on construction, as there existed a pond previously. The property was thereafter under the ownership of Provincial Government, and the name of his father Kartar Singh and his brothers appeared on the record of khasra girdawari upto 1983-84, but subsequently their names did not appear in the revenue record though plaintiff/petitioner and his brothers were still in possession, therefore, the entries in the revenue record were wrong. The plaintiff/petitioner further claimed that he had filed a suit titled “Kewal Singh Vs. Harjinder Singh” regarding the suit property, which was pending adjudication, where the local commissioner was appointed to demarcate the property, who reported the possession of the petitioner though it was said to be illegal and unauthorised. The case of the petitioner further was that a notice under Sections 4 and 7 of the Punjab Public Premises and Land Eviction & Recovery Act, 1973 (hereinafter referred to as 'the Act') was issued to the plaintiff/petitioner, and thereafter application was filed by Tehsildar, Civil Revision No. 4156 of 2010 (O&M) -3- Phagwara against the plaintiff, in the Court of Collector. In the said proceedings also the possession of the petitioner was admitted. It was asserted by the plaintiff/petitioner, that his established possession was proved, therefore, he was entitled to injunction against forcible dispossession. The suit was contested by the defendant/respondents by taking preliminary objection, that the jurisdiction of the civil court was barred under Section 15 of the Act. The suit was said to be not maintainable in present form. The locus standi to file the suit, was also challenged. Plea was also raised that suit was barred under Section 80 CPC, as no notice was served on the defendant/respondents. On merit, it was pleaded, that the State of Punjab was the owner in possession of the property in dispute. The defendants were allotted work by the Punjab Government, for construction of building of ITI, and the site plan already stand approved and sanctioned by the Principal of ITI, Phagwara, District Kapurthala. The defendants claimed that the vacant possession was delivered to the defendants and thereafter defendants have raised construction of boundary wall, around the disputed property in compliance with the direction to the defendants. The defendants claimed to be in possession of the property. Stand was taken that the Assistant Collector, Phagwara, had passed the ejectment order against the plaintiff, and possession of the property was taken from the plaintiff on 17.4.1985 vide rapat roznamcha report dated 17.4.1985. It was thereafter that the suit property was allotted to ITI by the State of Punjab and the work was allotted for construction of ITI building. The electricity bill and ration card attached with the plaint Civil Revision No. 4156 of 2010 (O&M) -4- were said to be not connected with the property in dispute. As regards the plea of suit of the plaintiff, stand taken was that the defendant/respondents were not party to that suit, therefore, were not bound by the proceedings taken thereunder. The learned trial Court dismissed the application for injunction, primarily for the reason that the revenue record showed that the property was in possession of the Provincial Government and that sanction was granted to the defendants for construction of the ITI and, in case the plaintiff is in possession, it was illegal. The learned trial Court also held, that notice had already been issued to the plaintiff/petitioner to vacate the land in dispute. The learned Court found that there was nothing on record to show that the possession of the land was forcibly being taken from the plaintiff/petitioner. The learned trial Court also recorded a finding, that the encroacher of the land cannot be given protection of law. The learned trial Court by recording that the plaintiff/petitioner had failed to prove the prima facie case, rejected the application. The findings recorded by the learned trial Court have been affirmed by the learned lower appellate Court. The learned counsel appearing on behalf of the petitioner challenged the impugned order, on the ground that the petitioner having been proved to be in established possession was entitled to protect his possession against his dispossession except in due process of law. In support of the stand taken, the learned counsel for the petitioner referred to para 7 of the learned trial Court judgment, where it has been recorded that the revenue record shows that the property was in possession of the Civil Revision No. 4156 of 2010 (O&M) -5- Provincial Government and sanction has been duly granted to the defendants for construction of I.T. Institute and if at all, the possession of the plaintiff, if any, is illegal one. The contention of the learned counsel for the petitioner, therefore, was that the learned trial Court had come to the positive conclusion that the petitioner was in possession though illegal. The learned counsel for the petitioner also contended that the learned appellate authority failed to appreciate the facts in true perspective by ignoring the fact, that in the previous litigation, Tehsildar, who was appointed as local commissioner, had, in fact, reported the possession of the plaintiff/petitioner, therefore, this report was sufficient to hold that the plaintiff/petitioner was in possession, therefore, entitled to protect his possession against dispossession except by due process of law. It was also the contention of the learned counsel for the petitioner, that rapat roznamcha showing that the possession was taken from the plaintiff/petitioner, was only a paper transaction, as it did not bear the signatures of the plaintiff/petitioner, thus, no importance can be attached to the said document, to hold that the plaintiff/petitioner is not in possession. The learned counsel for the petitioner also contended that the learned Courts below wrongly recorded that the possession was taken from the petitioner under the Act, as the notice was issued to the petitioner under the Act, which is being contested by the petitioner, therefore, there was no legal order as on date, on record of the case under which the petitioner could be dispossessed. Civil Revision No. 4156 of 2010 (O&M) -6- Learned counsel for the petitioner also contended, that he has already applied for transfer of the land as per policy of the Government and, therefore, his right of transfer is likely to be prejudiced, if the injunction is not granted. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. Initially in view of the fact that the petitioner had placed on record notices issued under Sections 4 and 7 of the Act, seeking eviction of the petitioner. This Court called upon the respondents to place on record, if there is any order passed by the competent quasi-judicial authority, ordering the eviction of the petitioner. In pursuance to the order passed by this Court, the learned counsel for respondent No.4 placed on record the order dated 31.5.1983, passed by the learned Collector, Phagwara, under Section 4(i) of the Act, as also the order passed by the learned Commissioner, Jalandhar Division, Jalandhar, on an appeal filed by the petitioner against the order of the learned Collector. It was in pursuance to the order passed by the quasi-judicial authority under the Act that the possession was taken by the State Government, as referred to above, by way of rapat roznamcha report dated 17.4.1985. This is also the reason that after passing of order by the learned Collector, the name of the petitioner or his predecessor-in- interest did not appear in the revenue record. It is well settled law, that the encroacher or person in illegal occupation cannot seek injunction against the true owner, with only exception being that if a person is shown to be in long established Civil Revision No. 4156 of 2010 (O&M) -7- possession, he is entitled to protect his possession for a limited purpose so as to be dispossessed in accordance with law. In the present case, there is a quasi-judicial order passed by the authorities ordering eviction of the petitioner. The petitioner in spite of the fact that he had filed an appeal against the order of his eviction, had concealed this material fact from the Court by submitting that there was no order by competent Court, ordering his eviction and that his illegal possession was required to be protected. In view of what has been stated above and specially in view of the fact that there is valid order of eviction passed against the petitioner, while he had concealed from the Court, the petitioner, therefore, was guilty of concealment of material facts. It cannot be said that the petitioner has any prima facie case to continue in possession in spite of the order of quasi-judicial authority passed against him, ordering his eviction. The petitioner cannot seek protection from the Court to protect his unauthorised possession, even after order of eviction has been passed against him. It is also matter of dispute as to whether petitioner is in possession, as the respondents have already constructed boundary wall, and are raising constructions of ITI building. No error, therefore, can be found with the order passed by the learned Courts below in rejecting the injunction application moved by the petitioner. No merit. Dismissed. (Vinod K. Sharma) Judge July 27, 2010 R.S.