R.S.A.No. 3260 of 2009 (O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3260 of 2009 (O&M) Date of Decision:September 08, 2009 State of Haryana and others ---Appellants versus Ram Chander and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Ms. Maloo Chahal, Deputy Advocate General, Haryana *** SABINA J. Plaintiffs had filed a suit for mandatory injunction. Civil Judge, Gurgaon vide judgment and decree dated 15.1.2009 decreed the suit of the plaintiffs. Aggrieved by the same, defendants preferred an appeal and the same was dismissed by Additional District Judge, Gurgaon vide judgment and decree dated 11.4.2009. Hence, the present appeal by the defendants. The facts of the case as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment read as under:- “The suit was filed with averments that plaintiffs are owners in possession of land, detailed in para No. 1 of the plaint. R.S.A.No. 3260 of 2009 (O&M) {2} Provincial Government Haryana is owner of land detailed in para No. 2 of the plaint which was acquired from the land of the plaintiffs, vide award dated 21.4.1980 for construction of approach road from Village Garhi Harsaru to village Gopalpur. The road was constructed by way of encroachment on the kanal area comprised in Rect. No. 231/2, owned by the plaintiffs, being not subject matter of acquisition, however, leaving an acquired area of Rect. No. 231/1. the said fact was not within the knowledge of plaintiffs and officials of defendants. The plaintiffs have been in possession of the area of Rect. No. 231/1, left by the defendants and the same is being used by them for agricultural purposes. It is further submitted by the plaintiffs that on 2.6.2003 they for the first time came to know about the said fact when the officials of the defendants came to the spot for removing the fencing and other material of the plaintiffs from the area of 231/1 and other land. They got the land demarcated on 31.7.2003 and on the basis thereof moved an application to AC Ist Grade, Gurgaon, requesting for exchange of land amicably but no action 3was taken. Thereafter, the plaintiffs got a legal notice served upon defendants but to no effect. It was on these grounds that plaintiffs came up with the present suit, claiming a decree for mandatory injunction directing the defendants to hand over the vacant possession of the one kanal area land, comprised in Rect. No. 231/2 to them. 3. Defendants filed written statement, inter alia R.S.A.No. 3260 of 2009 (O&M) {3} pleading that Provincial Government had acquired land in dispute along with khasra no. 231 for construction of an approach road from village Garhi Harsaru to village Gopalpur vide award dated 21.4.1980. the compensation of the acquired land was disbursed by the Government and received by the intere3st persons. The plaintiffs encroached on acquired PWD land in khasra no. 231/1 and 230/3 by way of putting fuel wood, cow dung cake etc., The road was constructed in the year 1981-82 in public interest. The plaintiffs had offered their land pertaining to khasra no. 231/2 for improvement of the curve of road willfully and as such some portion of said khasra no. 231/2 was taken under the road. At that time, they did not raise any objection regarding merging of the portion in the road and maintained discreet silence and as such State Government has become owner in possession of that area by way of adverse possession. Denying rest of the allegation, dismissal of the suit was prayed for.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiffs are entitled for the vacant possession of the land bearing Rect. No. 231/2 area one kanal by way of removing road from the portion/said land as alleged? OPP (2)Whether the suit of the plaintiffs is bad for mis-joinder and non-joinder of necessary parties as alleged? OPP (3)Whether the suit of the plaintiffs is barred by limitation as alleged ?OPD R.S.A.No. 3260 of 2009 (O&M) {4} (4)whether the plaintiffs are estopped from filing the present suit by their own act and conduct as alleged? OPD (5)Whether the plaintiffs have no cause of action to file the present suit as alleged? OPD (6)Whether the suit of the plaintiffs is not maintainable in the present form? OPD (7)Relief. After hearing learned State counsel, I am of the opinion that the present appeal is devoid of any merit. Plaintiffs had filed a suit for mandatory injunction that they were owners in possession of the suit land and without acquisition of khasra No. 231/2(1-0), the same had been encroached upon by the State at the time of construction of road. The appellants had failed to lead any evidence to the effect that khasra No. 231/2, in dispute, had been acquired by the State for the construction of the road. The khasra number, in dispute, is owned by the plaintiffs and it is only during demarcation, it transpired that the said khasra number was in an unauthorized possession of the State. The appellants could not also establish that the land in dispute had been given by the plaintiffs voluntarily for construction of the road. Admittedly, no compensation has been paid to the plaintiffs qua khasra number, in dispute. In these circumstances, courts below had rightly decreed the suit of the plaintiffs. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE September 08, 2009 PARAMJIT