Regular Second Appeal No. 5045 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 5045 of 2010 Date of Decision: 03.10.2011 *** Smt. Raj @ Raj Rani .. Appellant VS. Smt. Kiran Sharma .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Arun Abrol, Advocate for the appellant. Mr. T.N. Sarup, Advocate for the caveator. *** ARVIND KUMAR, J. This is plaintiff’s regular second appeal. She filed a suit for permanent injunction for restraining the defendant Kiran Sharma from interfering or forcibly dispossessing her from the suit property marked ABCDEF, consisting of two rooms, one kitchen and open courtyard, one bath, staircase and flush latrine and trees planted by the plaintiff, except one room mark “X”; further injunction was sought directing the defendant not to cut the trees and further to remove the encroachment marked “Y” made illegally on the suit property. It was her case that earlier the husband of the plaintiff was tenant on the aforesaid suit owned by Lalita paul and after the death of her husband she came into possession thereof as a tenant. However, defendant, claiming that she had purchased the suit property on 1.6.1998 from one Sikander paul, who is a stranger and not competent to sell the same, has started interfering in her possession and has raised unauthorized construction at point “Y” in the site plan attached with the plaint, while the ejectment petition filed against her had already been dismissed. The stand of the defendant, on the other hand, was that the plaintiff has no right over the suit property, which is vacant plot marked BCDE, which defendant had purchased vide sale deed dated 1.6.1998 for sale consideration of Rs.90,000/- and the same never remained as part of portion under the tenancy of the plaintiff. Only two rooms, kitchen, open common courtyard and common bath room are under the tenancy of the Regular Second Appeal No. 5045 of 2010 2 plaintiff. After the contest the learned trial Court restrained the defendant from interfering or dispossessing the plaintiff from portion marked ABEF of the house in dispute, except in due course of law. However, her claim with regard to portion “X” and BCDE was dismissed. The appeal preferred by the plaintiff was also dismissed, leading to the institution of the present regular second appeal. Heard. The plaintiff is dis-satisfied to the extent of rejection of her claim in respect of the property marked BCDE and “X”. It is apparent that the tenancy of the appellant is not in dispute and only to what extent she is in possession of the suit property is disputed by the defendant. However, from her own documents produced by the plaintiff, it emerges out that in an earlier round of litigation in the year 1993, wherein original owner Lalita Paul had sought eviction of the plaintiff, portion BCDE in the site plan (Ex.P18) was shown to be a separate plot and had plaintiff been in possession of the same, her eviction must have been sought therefrom. The Municipal record also corroborated the stand of the defendant and both the Courts below concluded that the aforesaid part of the suit property never remained under the tenancy of the plaintiff. The plaintiff, admittedly, not disputed the possession of land owner over the point “X”. Both the Courts below, thus, concurrently held that the aforesaid parts of the suit property never remained under the tenancy of the plaintiff. Though the plaintiff disputed the competency of Sikander Paul in executing the sale deed, but it is apparent that Sikander Paul was none else, but the brother of husband of Lalita Pal and he inherited the suit property from his father Mela Ram and even the sale deed was duly attested by Lalita Pal herself. Once it was concluded that property marked BCDE was purchased by defendant, applying the principle that possession follows the title, it was held that no injunction can be granted against the true owner. The things can be very clear from the observations made by the learned Appellate Court in para No.14 of its judgment and the same read as under:- “14. Now coming to the main controversy, I find that there is no much dispute as far as possession of the Regular Second Appeal No. 5045 of 2010 3 plaintiff-appellant on the other property. It has been fairly conceded by the Ld. Counsel for the appellant Mr. SAtyam Khajuria, Advocate that an ejectment order was passed against the plaintiff-appellant in an application for eviction filed by respondent-defendant Kiran Sharma by Shri B.R. Garg, the then Rent Controller, Gurdaspur on 1.2.2005. It has been further conceded that the present property in dispute was part of that ejectment petition. Even otherwise on going through the boundaries given in the ejectment petition tallie with the boundaries of the site plan of the property in dispute. However, after talling the boundaries in the ejectment petition as described in para 7 of the judgment on the Eastern site, there is plot of Lalita Paul which is subject matter of the present controversy. On the Western site, there is house of Mohinder Pal, on the Norther site, there is house of Subhash Chander and on Southern site, there is street. Now in the present case injunction has been sought over the total property which is marked A to F excluding one room mark “X”. The open court yard is also included in the property possessed by the plaintiff but evidence does not support so. AS far as property EABEF is concerned the ejectment order has been passed by a Court of competent jurisdiction. It has been stated that appeal is pending before the Appellate authority and dis-possession has been stayed. So the present injunction suit regarding this property is useless. The plaintiff has other efficacious remedies. Accordingly the suit regarding this property ABEF as per site plan Ex.P18 does not lie. 15. Now coming to the property marked by letter BCDE it is a open courtyard. That was never part of tenancy. At the time of filing of ejectment petition by the present respondent this plot was excluded from ejectment petition. It is clear that in the site plan in the Regular Second Appeal No. 5045 of 2010 4 ejectment petition filed by the respondent shows the property of Lalita Paul on the Eastern side. That was left only due to the fact that it was not part of the rented premises Had this plot been part of the rented premises given to the house of the plaintiff Lalita Paul and have sought eviction of this vacant plot also. Ex.D4 is the site plan of the previous litigation, which has been filed by the plaintiff. Now she cannot wriggle out of this. As per Ex.DW4/2 the Municipal record there are only two rooms given to the plaintiff on rent. One room is in possession of Mela Ram himself. PW1 in her cross- examination admitted that Mela Ram father of Sikander Pal was owner of the rented premises. Now the title of the landlord cannot denied by the tenant. It is the dispute of the plaintiff herself that the plot BCDE was never part of the tenant premises. Plaintiff herself has admitted in her cross-examination that flush and latrine were built by the Committee about 10/15 years ago. Accordingly as per this discussion, I find that no injunction can be granted qua that as neither the plaintiff has any right over it nor she is in possession of it…” From the above findings, there is no good or valid ground to interfere with the same. The learned appellate Court below also rightly turned down the prayer of the plaintiff to adduce additional evidence because the evidence sought to be produced by the plaintiff, was found not relevant for adjudication of the controversy as also the fact that no cogent reason was given by her to show her bonafide in not producing the said documents at the time of her evidence. No substantial question of law arises for consideration in the instant appeal, which is accordingly dismissed in limine. October 03,2011 (ARVIND KUMAR) Jiten JUDGE