R.S.A.No. 1473 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1473 of 2007 (O&M) Date of decision: 19.8.2009 Rajinder Kumar and another ......Appellants Versus Rajinder Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Vijay Rana, Advocate, for the appellants. None for the respondents. **** SABINA, J. Plaintiffs Rajinder Kumar and Shakti Kumar filed a suit for possession, which was dismissed by the Civil Judge (Sr.Divn.) Panchkula vide judgment and decree dated 13.3.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Panchkula vide judgment and decree dated 16.9.2006. Hence, the present appeal. Brief facts of the case, as noticed by the trial Court in para Nos. 1 and 2 of its judgment, are as under:- “ The plaintiffs have filed the present suit for possession with permanent injunction stating that Roda Ram son of Jaisi Ram and Smt.Prem Devi widow of R.S.A.No. 1473 of 2007 (O&M) 2 Chiranji Lal were the owners of the disputed property measuring 24'x12'-6” marked by letters ABCD in the site plan and this land is situated at Pinjore, Tehsil Kalka. These persons sold this property to the plaintiffs vide registered sale deed dated 28.4.1971 and the plaintiffs were also put in possession. After its purchase, the plaintiffs constructed some portion out of the land. It is also stated that a well was existing in one portion of the suit property at the time of its purchase. The plaintiffs allowed one Puran Chand to use a portion of the property, who constructed a house on the same with the consent of the plaintiffs and said Puran Chand is using the same as a licensee. It is stated that plaintiffs are simple and law abiding citizen and they being Government employees go to their office daily, whereas, defendants No.1 to 4, who are quarrelsome and forceful person tespassed over the property of the plaintiffs about three months back and encroached upon the same illegally and unauthorizedly. The plaintiffs asked the defendants No.1 to 4 to restore its possession and vacate the encroached portion, however, defendants hurriedly started construction over the land and even threatened the plaintiffs with dire consequences. It is stated that the plaintiffs had constructed a wall EF as shown in the site plan in such a R.S.A.No. 1473 of 2007 (O&M) 3 fashion that half portion of the circumference of the well came outside towards the street and the other half remained in the property of the plaintiffs, however, defendants no.1 to 4 with the help of defendants no.5 to 7 are out to create trouble and they are threatening to demolish the wall EF and they have also threatened to put water pipe in the Well of the plaintiffs forcibly. Hence, this suit. 2. Notice of the suit was given to the defendants. Defendants No. 1 and 5 did not appear in support of due service of summons upon them and they were proceeded against ex parte vide order dated 9.8.1999. Defendants no. 2 to 4 appeared and filed the written statement taking the preliminary objections regarding maintainability, non compliance of provision of order 7 rule 1 (i) (c ), estoppal, limitation, court fees, cause of action and concealment of true and material facts. On merits, it is denied that Roda Ram and Prem Devi were the owners of the property. It is also denied that the disputed property marked by letters ABCD as shown in the site plan attached with the plaint is part of the property of the HUDA etc. It is also denied that Roda Ram and Prem Devi sold the property to the plaitniffs vide registered sale deed dated 28.4.1971 or they put the plaintiffs in possession thereon. It is R.S.A.No. 1473 of 2007 (O&M) 4 stated that the alleged vendor of the plaintiff Shri Roda Ram etc. have no right title or interest in the subject matter of the sale deed dated 28.4.1971 and therefore, the sale deed dated 2.4.1971 is false and fabricated documents, which does not create any title in favour of the plaintiff. It is stated that the present suit has been filed by the plaintiffs to grab the property of late Bhagat Ram, the father of the defendants, who constructed his house 40 years ago. It is also stated that the Wall and the property adjacent to it is a shamlat property and all the people of the Mohalla used to get water from this well. It is denied that plaintiffs allowed Puran Chand to use a portion of the property and that Puran Chand constructed his house with the consent of the plaintiffs. It is also denied that Puran Chand is using the some portion as licensee of the plaintiff. It is also denied that defendants No.1 to 4 tresspassed over the property of the plaintiffs as alleged and encroached upon it. It is further stated that house no.218 to 220 are owned and possessed by Rajinder Kumar, Puran Chand and Nathu sons of Bhagat Ram. Previously, this property was owned and possessed by Bhagat Ram, the father of the defendants and after the death of their father, defendants inherited this property. After the formation of Municipal Committee R.S.A.No. 1473 of 2007 (O&M) 5 in Pinjore, House No.218 to 220 were allotted to the defendants. It is also stated that the sale deed relied upon by the plaintiffs has already been disbelieved.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners of the suit land/property fully detailed in the headnote of the plaint? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 4. Relief. ” After hearing learned counsel for the appellants, I am of the opinion that the present appeal deserves to be dismissed. The case of the plaintiffs was that they had purchased the suit property vide sale deed dated 28.4.1971, Ex.P-2. Site plan attached with the sale deed is Ex.P-3. The case of the plaintiffs further is that they were handed over the possession of the site in dispute at the time of sale. Well was also existing in the suit land and some portion of the same had been given to Puran Chand, who had constructed the house with their consent. Defendants No. 1 to 4 had encroached upon the suit property. The plaintiffs also placed reliance on judgments and decrees Ex.P-4 to E.P-9. The defendants R.S.A.No. 1473 of 2007 (O&M) 6 on the other hand pleaded that Roda Ram and Prem Devi were not owners of the suit property and hence, they had no right to sell the same to the plaintiffs. In fact, Bhagat Ram was owner of the suit property. It has been observed by the learned Additional District Judge in the impugned judgment that PW-5 Bhus Ram in his cross- examination had denied the documents of title in favour of vendors at the time of registration of sale deed Ex.P-2. No document had been proved on record with regard to the title of both the vendors. It was further observed by the learned Additional District Judge that vide Ex.D-18 a copy of the judgment passed by Civil Judge (Jr.Divn.) Panckula on 8.6.1999 in a suit titled Rajinder vs. Ram Sarup etc. an issue was framed as to whether Roda Ram and Prem Devi were owners of the suit property. In the said case also sale deed dated 28.4.1971 was in issue. The suit was dismissed with the finding that the vendors of the present plaintiffs i.e. Roda Ram and Prem Devi had no right or title in the suit property. In appeal, the matter was compromised but since the present defendants were not party in the judgments Ex.P-4 to Ex.P-9, the same were not binding on them. The defendants, on the other hand, had led evidence that in fact the property in dispute was owned by them. The house numbers 218, 219 and 220 had been allotted to them. Defendants also examined their neighbours to substantiate their ownership and possession over the suit property. R.S.A.No. 1473 of 2007 (O&M) 7 It has been further observed by the learned Additional District Judge that photographs placed on record also depicted that there were constructed houses over the suit property and the street existed at the spot. The defendants also placed on record the copies of house tax, assessment register to corroborate their ownership and possession as Ex.D-20 to Ex.D-22. In these circumstances, after appreciating the evidence on record, learned Additional District Judge has given a finding of fact that the site plans Ex.P-1, produced by the plaintiffs, and Ex.D- 1, produced by the defendants, along with oral evidence led by the parties, existence of street after the house of the defendants was admitted and thereafter, the property of other persons including the plaintiffs was situated. The existence of street/gali was admitted by PW-5 Bhus Ram. Hence, both the Courts below, after appreciating the evidence on record, had held that the plaintiffs had failed to establish that they were owners in possession of the suit property as the alleged vendors, from whom they had purchased the suit property, were not its owners. The finding of fact arrived at by the Courts below cannot be interfered with by this Court in this appeal. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) August 19, 2009 JUDGE anita