RSA No.2900 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2900 of 2011 (O&M) Date of decision 21.7.2011. Ram Parkash and others ...... Appellants. versus Surinder and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Gaurav Mohunta, Advocate for the appellants. K.C.PURI . J. Challenge in this regular second appeal are the judgment and decree dated 8.4.2011 passed by Mrs.Ritu Garg, learned Additional District Judge, Sonepat vide which the appeal preferred by the plaintiffs-appellants against the judgment and decree dated 10.3.2010 passed by Ms.Natasha Sharma, Civil Judge (Senior Division), Sonepat was dismissed. 2. Plaintiff Nos.1 and 2 filed suit for possession and mandatory injunction against the defendants. It is averred by the plaintiffs no.1 & 2 that they are the owners in possession of the land measuring 1K-15M comprised in Khasra No.22//22/1/1. The plaintiffs No.3 Anant Ram, plaintiff No.5 Raj Bala and No.6 Braham Parkash are owners in possession of land measuring 1 kanal 13 marlas comprised in Khasra No.22//22/1/2 RSA No.2900 of 2011 2 situated in the revenue estate area of village Lehrara, Tehsil and District Sonipat. The plaintiffs purchased the said land vide sale deeds dated 22.7.1982 and 17.8.1982 respectively and mutation Nos.1589 and 1590 were sanctioned in their favour. Plaintiff No.2 Ram Singh transferred an area of 400 Sq. yards out of his land in favour of the plaintiff No.4 namely Ishwar. On the death of Jai Bhagwan, his son Braham Parkash plaintiff no.6 inherited his share. The plaintiffs have no dispute amongst themselves and they are in peaceful possession of the suit land i.e. measuring 3K-8M/2000 sq. yards. Paras Ram, father of the defendants no.1 to 3 tried to interfere in the possession of the plaintiffs and a civil suit No.353 of 1999 was filed by plaintiff No.2. A local commissioner was appointed in that case. It is alleged that Paras Ram took illegal possession forcibly on the eastern- western side 32 Karams/15 ½ feet out of the suit land owned and constructed 16 shops during February-March 2002. Hence the prayer has been made for possession of the suit land after removing the construction. 3. On notice of the suit, the defendants appeared in the Court and filed their joint written statement. The defendants took up some preliminary objections that the suit of the plaintiffs is barred by principles of res- judicata, the plaintiffs have no loucs-standi to file the suit, have no cause of action, suit is barred under Order 2, Rule 2 CPC, suit is bad for non-joinder of necessary parties and that the plaintiffs are estopped from filing the present suit by their own acts and conduct. 4. On merits, the defendants have admitted that the plaintiffs No.1 and 2 are co-owners in joint possession of Killa No.22//22/1/1 measuring 1K-15M and the plaintiffs No.3 to 6 are co-owners in joint possession of RSA No.2900 of 2011 3 Killa No.22//22/1/2 measuring 1K-13M. It is pleaded that Mange Ram son of Ranjeet as owner of the land measuring 12K-13M situated in the area of village Lehrara and he sold land measuring 8K-0M including land comprising in Rect. And Killa Nos.22/22/2 (0-8) to one Nawab Singh son of Phul Singh vide registered sale deed dated 7.10.1964 and mutation No.1088 was also attested. It is further pleaded that Nawab Singh after some time sold away his land including Killa No..22//22/2 (0K-08M) to Rajinder Singh, Paras Ram and Darya Singh vide registered sale deed dated 22.2.1965 and mutation was also attested. It is further pleaded that although Nawab Singh initially and Rajinder Singh etc. subsequently had purchased northern portion of Killa No.22/22/2 measuring 0K-8M but Paras Ram in whose share Killa No.22/22/(0-8) had fallen in a private partition amongst his co-vendors had taken possession of Killa No.22/22/2/0(0-8). The land/plot of Paras Ram was shown as Killa No.22/22/2(0-8) and his remaining land was shown as Killa No.22/22/1 measuring 4K-13M. Mange Ram sold some other land including Killa No.22/22(4-13) to Inder Sain etc. vide registered sale deed dated 12.3.1968 which was described as Killa No.22/22/1 by Revenue Authorities and mutation was sanctioned. Later on Inder Sain etc. sold plot measuring 1000 sq yards in favour of plaintiffs no.1 & 2 on 22.7.1982 and another plot of 1000 sq yards to the plaintiffs no.3 to 6 vide sale deed dated 17.8.1982. These plots were marked as Killa No.22/2/1/1 and Killa No.22/22/1/2. It is further alleged that a passage was carved out by Inder Sain etc. towards the southern-western side of the above mentioned plots of present plaintiffs which was shown as Killa No.22/22/1/3. It is further averred that the land and passage of the plaintiffs RSA No.2900 of 2011 4 were situated towards the western side of plot owned and possessed by Paras Ram bearing Plot No.22/22/2 and that the plot of Paras Ram was abutting Sonipat-Rohtak Road situated on the eastern side of the plot of Paras Ram. The plaintiffs and their predecessors-in-interest Inder Sain etc. were not satisfied with the partition of their plots and they wanted more valuable portion of the plot of Paras Ram bearing Killa No.22/22/2 towards eastern side of their plots abutting Sonipat-Rohtak road. The plaintiffs and Inder Sain managed to obtain order of the Collector, Sonipat dated 29.12.1982 and got mutations No.1586, 1587, 1589 & 1590 sanctioned by the order of Assistant Collector IInd Grade, Sonipat dated 13.1.1983. Inder Sain etc. filed a civil suit No.889/83 titled as ‘Inder Sain etc. vs. Paras Ram’ for getting possession of Killa No.22/22/2 from Paras Ram. In that suit, the plaintiffs admitted the possession of Paras Ram on Killa No.22/22/2 situated towards eastern side of their plot abutting Sonipat-Rohtak Road. The said suit was decreed by the Court of Sh.B.K.Aggarwal, the then Senior Sub Judge, Sonepat vide judgment and decree dated 29.9.1986. Paras Ram then filed an appeal and the same was accepted by Sh.J.B.Garg, the then Additional District Judge, Sonepat vide his judgment and decree dated 13.5.1988 vide which the mutations no.1586, 1587, 1589 & 1590 under “Sehalt Intkal” were held to be illegal and were set aside and earlier position of Killa No.22/22/2 was restored towards the estern side of killa No.22/22 abutting Sonipat -Rohtak Road. Paras Ram was held to be in possession of Killa No.22/22/2 (0K-8M) by way of adverse possession. Inder Sain etc. challenged the judgment and decree dated 13.5.1998 in the High Court by filing an appeal but the said regular second appeal was RSA No.2900 of 2011 5 dismissed in the year 1993. The contempt petition against Paras Ram was also dismissed vide order dated 14.2.1992. The plaintiffs then filed the order civil suit No.52/1 of 2004/1999 on 3.4.2002 in the Court of Sh.Ajay Prasher, the then Additional Civil Judge (Sr.Divn.) Sonepat for declaration and permanent injunction against Paras Ram and others claiming portion of Killa No.22/22/2 abutting Sonipat-Rohtak road and partition of killa No.22/22/1/1/ and 22/22/1/2/ was challenged. The said suit was dismissed by the said Court vide judgment and decree dated 3.9.2004. The appeal against the judgment and decree dated 3.9.2004 was also dismissed by the Court of Sh.J.S.Jangra the then Additional District Judge, Sonepat vide judgment and decree dated 6.4.2005. All other averments were denied by the defendants. 5. The plaintiffs filed their replication in which they denied the averments of the written statement and reiterated those of the plaint. 6. From the pleadings of the parties, following issues were framed: 1. Whether the plaintiffs are owners of the land mentioned in para no.2 of the plaint? OPP. 2. Whether the defendant has encroached upon the portion of the plaintiffs shown in para no.2 of the plaint? OPP 3. If issues no.1 & 2 are proved, whether the plaintiffs are entitled for possession of the land mentioned in para no.2 of the plaint? OPP 4. Whether the suit is barred by the principles of res- judicata? OPD RSA No.2900 of 2011 6 5. Whether the plaintiffs have no cause of action and locus-standi to file the present suit? OPD 6. Whether the plaintiffs are estopped by their own act and conduct to file the present suit? OPD. 7. Whether the suit is bad for non-joinder of the necessary parties? OPD 8. Relief. 7. In order to prove their case, the plaintiffs have examined PW1 Varinder Singh Assistant of the office of Deputy Commissioner, PW2 Varinder Kumar Kanugo, PW3 Daya Nand DRK and Ram Parkash plaintiff No.1 himself appeared as PW4 and closed their evidence after tendering certain documents. 8. In rebuttal, DW1 Surender defendant no.1 appeared as DW1 and also produced voluminous documentary evidence. 9. The trial Court has taken up issue Nos.1,2 and 3 together and decided Nos.1,2 and 3 against the defendants. Issue Nos.4,5,6 and 7 were decided in favour of the defendants and against the plaintiffs. In view of the findings on the above issues, the suit of the plaintiff was dismissed vide judgment and decree dated 10.3.2010. 10. Feeling dissatisfied with the above said judgment, the plaintiffs preferred the First Appeal and the same was dismissed vide judgment and decree dated 8.4.2011 passed by Ms.Ritu Garg, Additional District Judge, Sonepat. 11. Feeling dissatisfied with the judgment dated 8.4.2011 passed by Ms.Ritu Garg, Additional District Judge, Sonepat and judgment and decree RSA No.2900 of 2011 7 dated 10.3.2010 passed by Ms.Natasha Sharma, Civil Judge (Senior Division), the present regular second appeal has been filed by the plaintiffs- appellants. 12. The plaintiffs/appellants in paragraph No.7 of the grounds of appeal have mentioned that following substantial question of law have arisen :- i) Whether the judgment and decree passed by both the Courts below are based upon misreading of evidence vis- a-vis; the report of Local Commissioner (Ex.P1) and the judgment passed by this Hon'ble Court dated 20.1.1993 ? ii) Whether the principle of res-judicata is applicable to the facts and circumstances of the present case in spite of the fact that the land in dispute in both the suits are uncommon being situated in different Khasra Nos? Iii) Whether both the Courts below are justified in declaring the possession of the land in dispute in favour of defendants despite the fact that sale deed qua the same in favour of the appellants stands admitted on record.? iv) Whether the defendants have become owner by means of adverse possession of the present suit land which has been illegally encroached upon by them ? V ) Whether the judgment and decree passed by both the Courts below deserve to be set aside in view of the facts and circumstances of the present case ? RSA No.2900 of 2011 8 13. However, during the course of arguments, Shri Gaurav Mahunta, counsel for the appellants has submitted that the appellants does not press the appeal qua two karm of land but press his appeal qua one karm of land which has been encroached. It is submitted that in the previous litigation the encroachment made by the defendant was roughly in the two karam but now the defendants have encroached upon the land measuring 3 karms into its land so in this manner one karm more has been encroached by the defendant. 14. I have carefully considered the said submission but do not find any force in that submission. 15. The defendants in the previous litigation were held owner in possession of the suit property by way of adverse possession. That judgment and decree were upheld by the High Court vide judgment dated 20.1.1993. The plaintiff filed another suit which also resulted in the same result. It is not the case of the plaintiff that one karm more has been encroached upon by the defendants after the decision of earlier suit. It is not disputed during the course of arguments that previous judgment is between the parties and regarding the suit land. The plea of one karam encroachment, argued by the learned counsel for the appellants is not substantiated on the file. So, in view of the concurrent finding of fact, I have no hesitation in observing that no substantial question of law has arisen in the present appeal. 16. Consequently, the appeal is without any merit and the same stands dismissed. RSA No.2900 of 2011 9 17. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE July 21, 2011 sv