RSA No.1595 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1595 of 2008 (O&M) Date of decision: 4.10.2010 Remeshwar Dass ......Appellant(s) Versus The Punjab Urban Planning and Development Authority, Patiala ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. H.S. Deol, Advocate for the appellant. Rakesh Kumar Garg, J. (Oral) This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby suit for mandatory injunction directing the respondent to hand over the possession of the suit property, was dismissed. As per the averments made in the suit, the plaintiff-appellant was owner in possession of the suit property and the defendant-respondent had nothing to do with it, however, at the instigation of the Sarpanch of the village the officials of the defendant were causing demolition of the property. The appellant filed suit for permanent injunction wherein he was granted status quo order regarding the construction which was violated by the respondent. The appellant filed a contempt petition. However, on the assurance of the respondent, the suit was withdrawn on 19.8.1996. Thereafter, the appellant repaired the boundary wall and was using the whole of the property within the said boundary wall. However, the officials of the respondent on 30.1.1997 started giving threats to demolish the RSA No.1595 of 2008 (O&M) 2 construction of the appellant. The trial Court granted the status quo order on 3.2.1997 regarding the construction existing on the site in dispute. On 10.2.1997, the whole of the structure was demolished by the officials of the respondent. Thereafter, the appellant also moved an application under Order 39 Rule 2A and Section 144/151 CPC. Since the act of the respondent was illegal, the present suit was filed. Upon notice, the suit was contested by filing written statement. It was stated that the suit property had already been acquired by the defendant-respondent. An objection to the effect that suit was barred under Order 9 Rule 9 CPC was also taken. It was specifically stated that the plaintiff-appellant was not in possession of the suit property at the time of filing of the suit. All other averments in the suit were denied being incorrect. Dismissal of the suit was prayed. No other application was filed by the appellant to controvert the stand taken by the respondent in the written statement. While dismissing the suit, the trial Court held that the appellant had failed to prove that he was owner of the suit property and that there was construction over the suit property which was allegedly demolished by the respondent. The trial Court also observed that on one hand the appellant was seeking possession of the property and on the other hand, was alleging to be in possession over the suit property. A finding was also recorded that the appellant had filed an earlier suit which was dismissed under Order 9 Rule 8 CPC. It was found that in the earlier suit, the appellant was seeking permanent injunction whereas in the present suit, he was seeking restoration of the possession and, thus, the suit was though not barred under Order 9 Rule 9 CPC but the suit for mandatory injunction was not maintainable. The appeal preferred by the plaintiff against the aforesaid RSA No.1595 of 2008 (O&M) 3 judgment and decree of the trial Court was also dismissed vide impugned judgment and decree. However, finding on issue No.6 which was returned in favour of the appellant by the trial Court was also reversed. Still not satisfied, the appellant has filed the instant appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the appellant and perused the impugned judgment and decrees. The appellant is seeking a mandatory injunction against the defendant-respondent for handing over the possession of the suit property without being in possession of the suit property at the time of filing of the suit. Learned counsel for the appellant was unable to challenge the aforesaid findings of the Courts below. Thus, no fault can be found with the findings of the Courts below whereby it was held that the suit of the appellant for mandatory injunction in the present form was not maintainable. Keeping in view the settled proposition of law as aforesaid, no interference is warranted in the impugned judgment and decrees. No substantial question of law arises in this appeal. Dismissed. October 4, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.1595 of 2008 (O&M) 4 This appeal has arisen out of a suit for mandatory injunction directing the respondent to hand over the possession of the property in dispute. The Lower Appellate Court has non-suited the appellant on the ground that the suit in its present form is not maintainable.