RSA No. 2886 of 2008 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 2886 of 2008 Date of decision: September 17,2008 Manphool ..Appellant. Versus State of Haryana and another ..Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. L.N.Verma, Advocate for the appellant. .... Rakesh Kumar Garg,J. Appellant being plaintiff filed Civil Suit for declaration to the effect that he is owner in possession of land comprised in Khasra Nos.14//5/2(0-13), 16 (8-0), 7/1(0-8), 24/2(4-16), 25(8-0), 15//10/2(2-6), 11(7-7), 20/2(4-16), 21/1(4-16) comprised in Khewat No.2717 Khatauni No.3825 total measuring 41 kanals 2 marlas situated within the revenue estate of village Sadalpur Tehsil and District Hissar(for short suit land) alleging, previously suit land was owned by provincial Government and the same was Banzar(Barren) Barani (non-irrigated) and was forest and 35 years prior to the filing of the suit his father levelled the suit land, changed its nature while putting great labour, investing huge money, made it cultivable. His father expired in the year 1980 and after his death, appellant started cultivating the suit land and is in cultivating possession of the same. The possession of the suit land by the father of the appellant and after the death of the appellant's father by the appellant for the last more than 35 years is peaceful,uninterrupted, without any payment and is hostile to the knowledge of all concerned and defendants/respondents have never interfered into the possession and his adverse possession over the suit land has ripened into ownership. The respondents wanted to forcibly dispossess the appellant and his father illegally and without any notice and constrained the appellant to file a suit for permanent injunction bearing No.115-C dated 31.3.1978 titled as Phulia RSA No. 2886 of 2008 2 Versus State of Haryana and others(for short previous suit) and the previous suit was dismissed vide judgment and decree dated 17.1.1981 by the court of then learned Sub Judge Ist Class, Hissar, holding the possession of the appellant over the suit land was illegal. Aggrieved from the judgment and decree dated 17.1.1981 passed in the previous suit, appellant filed appeal in the court of learned District Judge, Hissar and the learned Additional District Judge, Hissar dismissed the appeal filed by the appellant and learned Additional District Judge, Hissar upheld the view of civil court expressed in judgment and decree dated 17.1.1981. By filing the instant suit , appellant has alleged that his adverse possession over the suit land for the more than 35 years has ripened into ownership and the respondents illegally want to interfere into the possession of the appellant and bent on forcibly ejecting him from the suit land and on 20.8.2001 the officials of the respondents visited the site of the suit land and threatened the appellant they would occupy the suit land by all means and damage the crops if the appellant would not surrender the possession. Respondents filed written statement, p;leading inter alia non- maintainability of the suit, without cause of action, barred by principle of resjudicata, civil court having no jurisdiction to try and entertain the suit, sternly controverted the allegations of the appellant. Previous suit was relating to the same suit land was between the same parties which was filed by the appellant was dismissed on 17.1.1981 vide judgment and decree Ex. D-1 and Ex. D-2 respectively. Aggrieved from the judgment and decree Ex. D-1 and Ex. D-2 dated 17.1.1981, appellant filed appeal in the court of District Judge, which was dismissed vide judgment and decree dated 24.2.1981 Ex.D3 and Ex.D4 passed by the then learned Additional District Judge, Hissar and the judgment passed in the previous suit has attained finality. After passing of the judgment and decree in the previous suit, appellant did not vacate the suit land and respondents filed application under Sections 4,5 and 7 of the Haryana Public Premises and Land Eviction and Recovery Act, 1972 (for short Act) seeking ejectment of the RSA No. 2886 of 2008 3 appellant as well as for recovery of damages, for use and occupation of the suit land by the appellants and the application Ex. D-6 under the provisions of the Act is pending in the court of learned Collector, Hissar. In fact, suit land was given on lease on yearly basis to the highest bidder in an open auction in the year 1977- 78 only out of the total land measuring 41 kanals 2 marlas (which has already been termed as suit land). Only the land measuring 21 kanals 17 marlas was given to the plaintiff in open auction on yearly basis for one year only i.e., 1977- 78 being highest bidder. The remaining area 19 kanals 5 marlas was given to Sarvan son of Hiyan on yearly basis for one year 1977-78 only. The plea of adverse possession qua suit land taken by the appellant is not tenable in the eyes of law and his status qua the land is merely a tresspasser. After recording the evidence of the parties and hearing learned counsel for the parties, the trial Court dismissed the suit filed by the appellant vide judgment and decree dated 24.5.2006. Feeling aggrieved against the said judgment and decree of the trial Court, the plaintiff filed an appeal which was also dismissed by the impugned judgment and decree dated 9.5.2008 passed by the District Judge, Hissar by observing as under: “Admittedly, appellant filed previous suit relating to the suit land which was decided vide judgment and decree dated 17.1.1981 Ex.D1 and Ex.D2 respectively. Aggrieved from the judgment Ex.D1 and decree Ex.D2 appellant filed an appeal in the court of learned District Judge, Hissar and his appeal was dismissed by the learned District Judge, vide judgment and decree dated 24.9.1981 Ex.D3 and Ex.D4 respectively. In this way, in the judgment Ex.D1 possession of the appellant over the suit land had been held unauthorized. Admittedly, the judgment and decree passed in previous suit has attained finality. In the present case appellant has taken the plea of adverse possession, his plea of adverse possession is mutually contradictory. Plaintiff claimed adverse RSA No. 2886 of 2008 4 possession over the suit land on the ground of continuous possession for the period of 35 years through his father. His father has been expired in the year 1980, this fact is pleaded by the appellant himself. The suit has been filed on 29.8.2001 and in order to sustain the plea of adverse possession against the Government there is mandatory period of 30 years of hostile possession is must. The possession of the appellant over the suit land cannot be termed hostile because he was inducted as lessee for the year of one year only i.e., 1977-78. This fact has been admitted by PW 2 and in the previous judgment Ex. D-1 and decree Ex. D-2 which were passed on 17.1.1981. In the previous judgment the plea of adverse possession was not taken by the plaintiff and it is clear, the previous suit was contested by the respondents and when plaintiff/appellant lost the previous case, respondent filed an application under the Act Ex. D-6 seeking ejectment of the appellant on 11.4.2001. This suit has been instituted on 29.8.2001. Prior to filing of the suit by the appellant, respondents have already made prayer seeking his ejectment from the suit land, then, possession of the plaintiff over the suit land cannot be termed hostile against the respondent being true owner.” Mr. L.N. Verma, learned counsel for the appellant has vehemently argued that the courts below have taken wholly erroneous view that possession of the appellant over the land in dispute being unauthorized, he is not entitled to the relief of permanent injunction as it is well settled that even an unauthorized occupant in long and settled possession is entitled to protection of law and cannot be dislodged and hounded our by force and can be dispossessed only by following the due process of law. On the basis of the said argument, learned counsel for the appellant has claimed that the following substantial questions of law arises in the RSA No. 2886 of 2008 5 present appeal:- “. Whether the appellant, who is in long and settled possession of land in dispute is entitled to the protection of possession except in due course of law, even if he is in an unauthorized possession? “ No other question of law has been claimed by the counsel for the appellant in this appeal. I have heard learned counsel for the appellant and find no force in the argument raised by him. The question of law sought to be raised by the appellant does not arise in the present appeal because the appellant is seeking a suit for declaration to the effect that he has become owner by way of adverse possession and he is legally entitled to get his name recorded as owner in possession of the said land in the relevant revenue record and also for permanent injunction restraining defendants from taking over possession and therefore, the respondents be restrained from interfering in the possession over the suit land in any manner and the defendants be restrained from ejecting the plaintiff appellant from the suit land in any manner. Both the courts below have rejected the plea of the appellant of becoming the owner of the suit land on the basis of adverse possession and the appellant has been found to be in an unauthorized possession. No injunction can be issued to protect the unauthorized possession. The appellant is a tenant who is being evicted by the respondent under the provisions of Public Premises Act. The trial Court in para No.39 of its judgment has clearly recorded that the respondents are proceeding against the appellant in accordance with law. The relevant para of the judgment of the trial Court is reproduced as under: - “It has also come on record that defendants had filed an application Ex. D-6 under the Public Premises Act for ejectment of the plaintiff which shows that defendants are proceeding in accordance with law to eject the plaintiff. The plaintiff is a tresspasser and he cannot claim injunction against the true owner, so, the possession of the plaintiff being a tresspasser is no RSA No. 2886 of 2008 6 possession in the eyes of law. He has not been able to prove his rightful possession on the property in dispute and under such circumstances equitable relief of injunction cannot be granted in his favour.” For the reasons recorded above, I find no merit in the instant appeal. No substantial question of law as claimed by the counsel for the appellant arises in the present appeal for determination of this Court. Dismissed. September 17, 2008 (RAKESH KUMAR GARG) nk JUDGE