R.S.A.No. 15 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 15 of 2011 (O&M) Date of decision: 5.1.2011 Jagtar Singh and another ......Appellants Versus Bachan Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.O.P.Kamboj, Advocate, for the appellants. **** SABINA, J. Plaintiffs had filed a suit for possession PQRSTUP as depicted in red colour in the site plan attached with plan forming part of Khasra No. 65// 9 (8-13). The trial Court decreed the suit of the plaintiffs vide judgment and decree dated 6.5.2008. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ferozepur vide judgment and decree dated 6.10.2010. Hence, the present appeal by defendants No.1 and 2. R.S.A.No. 15 of 2011 (O&M) 2 Brief facts of the case, as noticed by the Additional District Judge, in para Nos. 2 and 3 of impugned judgment, are as under:- “2. Brief facts of the case of the plaintiffs are that they filed civil suit against the defendants for a decree of possession of portion marked PQRSTUP as shown by red colour in the site plan forming part of killa No.9 of Rect. No. 65 (8-13) of Khewat No.389 khatauni No.770 as per jamabandi for the year 1995-96, situated in village Bare Ke Tehsil and District Ferozepur fully described in the head not of the plaint. It is averred that Surjan Singh son of Gurdit Singh son of Jhanda Singh owned agricultural land and other immovable property in village Bare Ke including land comprised of Khewat No.389 Khatauni No. 770 Rect. No. 65 Killa No. 9 (8-13), situated in village Bare Ke Tehsil and District Ferozepur. After the death of Surjan Singh, his estate devolved upon his legal heirs i.e. Bakha Bai wodow and his children (plaintiffs) vide mutation No.1711. Bakhan Bai had also died about two years ago and the plaintiffs are the only legal representatives of Bakhan Bai. It is further alleged that plaintiff Bachan Singh had inducted Jagtar singh and Gurdeep Singh defendants as tenants in the property marked as PQRSTUP as shown by rd colour in the site R.S.A.No. 15 of 2011 (O&M) 3 plan which forms part of khewat No. 389 khatauni No.770 Rect No. 65 Killa No. 9 (8-13). The remaining area of this killa No.9 is in possession of the plaintiffs. Defendant No.1 continued in possession of this property as tenant under Bachan Singh and in the year 1996 they had inducted defendants No.3 to 8 in separate parcels of the said property. Defendant No.3 has been inducted in possession in shop mark A, defendant No.4 has been put in possession in shop mark B, defendant No.5 has been put in possession in shop mark C, defendnat No.6 has been put in possession of shop mark D, defendant No.7 has been put in possession of shop mark E, defendant No.8 has been put in possession in shop mark F by defendants No.1 and 2 while the remaining portion mark G continued to be in possession of defendants No.1 and 2 where they have installed their penja and the back side portion is being used by defendants No.1 and 2 as their residence. It is further averred that in the year 1996 Jagtar Singh and Gurdip Singh defendants No.1 and 2 filed civil suit No.169-1 of 23.8.1996 against Bachan Singh and Bhagwan Singh plaintiffs No.1 and 2 for permanent injunction restraining them from interfering in possession of the plaintiffs over house comprised of rooms and shops as shown by red colour in the site plan, R.S.A.No. 15 of 2011 (O&M) 4 situated in village Bare Ke Tehsil and District Ferozepur in which the plaintiffs of that suit claimed thaty they are in possession of the suit property and the defendants of that suit have no right, titled or interest in the said property. Bachan Singh and Bhagwan Singh appeared and contested that suit. That suit was, however, decreed by the court of Shri K.K. Kareer, learned Addl. Civil Judge (Sr. Div) Ferozepur vide his judgment and decree dated 4.10.2001 directing that the plaintiffs of that suit are not to be dispossessed except in due course of law. It is further alleged that meanwhile the plaintiff alongwith Bakhan Bai filed civil suit No.122-1 of 7.6.1997 against Jagtar Singh and Gurdeep Singh for permanent injunction restraining them from raising any type of construction over the land measuring 8 kanals 13 marlas comprised of Rect. No.65 Killa No.9 situated in village Bare Ke and Mrs. H.K. Randhawa, learned Civil Judge (Junior Division) Ferozepur vide her judgment and decree dated 4.12.1998 under issues No.1 and 2 held that plaintiffs were owners of the suit property and were entitled to permanent injunction and the suit of the plaintiffs was decreed and the defendants No.1 and 2 were restrained from raising any construction over the suit property. It is further averred that the plaintiffs being owners of the property R.S.A.No. 15 of 2011 (O&M) 5 marked by words PQRSTUP as shown by red colour in the site plan forming part of killa No. 9 (8-13) of Rect. No.65 and the possession of defendants No.1 and 2 became unlawful on account of forfeiture of their tenancy while the possession of defendants No.3 to 8 who were put in possession by defendants No1 and 2 also is unlawful qua the plaintiffs. The plaintiff have never consented to delivery of possession of any portion of the suit property by defendants No.1 and 2 to the remaining defendants and their possession is without consent of the plaintiffs and thus all the defendants are liable to eviction from the suit property. The plaintiffs requested the defendants to vacate the property in dispute and deliver its vacant possession to the plaintiffs but to no use. Hence the present suit. 3. Notice of the suit was given to the defendants who appeared and contested the suit of the plaintiff by filing joint written statement in which they took preliminary objections to the effect that suit of the plaintiffs is not maintainable in the present form; plaintiffs have no concern with the suit property and the present suit is time barred. On merits, they have alleged that plaintiffs have no concern with the property marked as PQRSTUP as shown by red color in the site plan. The site plan is also R.S.A.No. 15 of 2011 (O&M) 6 not correct. They have denied that property in dispute form part of khewat No.389 khatauni No.770 Rect. No.65 Killa No. 9 (8-13). They have also denied that defendant No.1 continued in possession of this property as tenant under Bachan Singh or in the year 1996 they had inducted defendants No.3 to 8 in separate parcels of the property in dispute. The plaintiffs have concealed the real facts from the court. The true facts are that defendants No.1 and 2 constructed their residential house for the last 35/40 years back when the village New Bare Ke established and later on they constructed shops in dispute and now defendants No. 1 and 2 are the owners in possession of the suit property since for the last about 35/40 years and they had given the shops in dispute to defendants No.3 to 8 on rent and they are collecting the rent from defendants No. 3 to 8. They have admitted that defendants No. 3 to 8 are in possession of the shops in dispute. Defendants No.1 and 2 never remained as tenant of the plaintiffs. Defendants No.1 and 2 are owners in possession over the suit property and defendants No. 3 to 8 are their tenants. They denied the other averments made in the plaint and prayed for the dismissal of the suit of the plaintiffs with costs. On the pleadings of the parties, following issues were R.S.A.No. 15 of 2011 (O&M) 7 framed by the trial Court:-“ 1. Whether the plaintiffs are entitled to decree for possession of the suit property as detailed in the title of the suit ? OPP 2. Whether suit is not maintainable in the present form ? OPD 3. Whether the suit is within limitation ? OPP 4. Relief. After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. Plaintiffs had filed suit for possession claiming that they were owners of Khasra No. 65// 9 (8-13). In order to prove their case, plaintiffs led oral as well as documentary evidence. As per the jamabandi, placed on record for the year 1995-96, plaintiffs were depicted as owners of khasra No. in question. Plaintiffs had earlier filed a suit for permanent injunction restraining the appellants from raising any type of construction over the land measuring 8 kanals 13 marlas comprised in Khasra No. 65// 9 . The said suit was decreed by the trial Court vide judgment and decree dated 4.12.1998 and the present appellants were restrained from raising any construction over the suit property. R.S.A.No. 15 of 2011 (O&M) 8 Appellants had also filed a suit for permanent injunction restraining respondents No.1 and 2 from interfering in their peaceful possession over the house in dispute. The said suit filed by the appellants was decreed by the trial Court vide judgment and decree dated 4.10.2001. A perusal of the said judgment reveals that the appellants were found in possession of the property in dispute and hence, their suit for permanent injunction was decreed. However, in para 10 of the judgment dated 4.10.2001, it has been held as under:- “ There is absolutely no evidence on record to show as to who is the owner of the land upon which the construction of house and shop in dispute has been raised. The defendants have also assailed the correctness of the site plan Ex.P1 but they have not led any evidence to prove as to how and to what extent the site plan Ex.P1 is not correct as per the spot nor any counter signed plan has been proved on record by the defendants though the defendants have not disputed the existence of the shops and the house in the disputed property.” Thus, in the suit filed by the appellants, the ownership qua the suit property was not established. Moreover, in a suit for permanent injunction, the only important factor to be considered is as to who is in possession of the property in dispute. Appellants were held to be in possession of the suit property. Moreover, respondent Nos.1 and 2 had admitted the fact that the appellants were in possession of the R.S.A.No. 15 of 2011 (O&M) 9 property in question. Now by way of the present suit plaintiffs have sought possession of the property in dispute on the basis that they were owners of the land in dispute. The plaintiffs have successfully established their ownership qua the property in dispute by leading oral as well as documentary evidence. The appellants, on the other hand, have not led any evidence to establish that they are the owners of the land in dispute. The appellants also failed to lead any evidence to the effect that they had raised construction over the Government land. In these circumstances, the Courts below have rightly decreed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 05, 2011 anita 0