RSA 1964 of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 1964 of 2007(O&M) Date of Decision:October 22, 2009 Siri Chand ...........Appellant Versus Devinder Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sanjay Verma, Advocate for the appellant. Mr.G.S.Sandhawalia, Advocate for the respondents ** Sabina, J. Plaintiff-Siri Chand filed a suit for permanent injunction qua the property as detailed and described in the heading of the plaint . The suit of the plaintiffs was dismissed by the Civil Judge (Junior Division) Jagadhri vide judgment and decree dated 19.4.2005. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge, Jagadhri vide judgment and decree dated 15.3.2007. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge, in paras 2 to 4 of its judgment reads as under:- “2. The gist of the case is as under:- The plaintiff has filed a suit for permanent injunction against the defendants inter-alia on the grounds that he on migration from Pakistan in the year 1947 i.e. at the time of partition of the country, shifted in village Ganauli and since then he has been RSA 1964 of 2007 2 coming in actual physical possession of the suit property fully detailed and described in the head note of the plaint bearing property/plots no. 120,122 and 131. Earlier, he constructed kacha kotha in those plots which have fallen down and now he is using the same for putting kurdi, tethering cattle etc. and has also planted trees. His name is also incorporated in the field book and naksha abadi. It is alleged that since his possession has been coming since the year 1947 continuously, peacefully, without any interruption, unbroken and hostile against the whole world including the defendants, thus, without prejudice to the above, he has also become owner of the suit properties by way of adverse possession. It is alleged that the defendants have no connection or concern with the disputed properties,but they without any right, title or interest are threatening to interfere in peaceful possession of the plaintiff over the disputed property and also threatening to change the existing position of the disputed property by raising construction. Hence, he sought a decree for perpetual injunction against them. 3. On notice, defendants appeared and filed their joint written statement alleging therein that the suit property was earlier owned by the plaintiff and his brothers, namely, Hari Ram and Prithvi Chand-husband of defendant no.1 jointly. Whereabouts of Prithvi chand could not be known for more than 20 years, thus, he was presumed to be dead. Since there remained dispute regarding joint properties, in order to settle that an oral family settlement had taken place among the parties and Hari Ram in the RSA 1964 of 2007 3 year 1990 and the properties were divided. The said family settlement was lateron reduced into writing on 8.4.1997. Thus, the plaintiff has no concern with the plot/property which had fallen to the share of the defendants in the said family settlement and as such he is estopped from filing the present suit and is not maintainable. The suit is misconceived, false and frivolous as well as hopelessly time barred, which is liable to be dismissed with special costs. 4. The plaintiff filed his replication against the written statement filed by the defendants wherein the factum of alleged family settlement has been denied. The writing dated 8.4.1997 alleged by the defendants in the written statement was claimed to be forged and fabricated documents. It is alleged that defendants had moved an application before the police on 18.6.1998 in order to get possession of the disputed property illegally on false allegations and the police had called the plaintiff and his brother Hari Parkash in police station on 1.7.1998 where the police got his signatures as well as that of his brother Hari Ram on several blank paper and got prepared the writing dated 8.4.1997 which is absolutely forged and fabricated document. While denying the other averments mentioned in the written statement, the stand as taken in the plaint was reiterated On the pleadings of the parties, the following issues were framed by the trial Court:- "1. Whether the plaintiff is entitled to injunction, as prayed for ? OPP RSA 1964 of 2007 4 2. Whether the plaintiff is owner of the suit property, as alleged?OPP 3. Whether the suit is not maintainable as alleged?OPD 4.Whether the plaintiff is estopped from filing the present suit,as alleged?OPD 5. Whether the suit is time barred?OPD 6. Whether the plaintiff has no cause of action?OPD 7.Whether the plaintiff has no valued the properly for the purpose of court fee and jurisdiction?OPD 8.Whether the plaintiff has no locus standi to file the present suit?OPD 9.Whether the defendants are entitled to special cost?OPD 10. Relief An additional issued was framed on 17.1.2005 which reads as under:- 3-A Whether the family settlement had been arrived at in 1990 and lateron reduced into writing on 8.4.1997, as alleged, if so, to what effect?OPD". After hearing the learned counsel for the parties, I am of the opinion that the instant appeal is devoid of any merit. Plaintiff-Siri Chand had filed the suit seeking permanent injunction against the defendants with regard to the property in dispute. In the present case, plaintiff has miserably failed to prove his case. One of the pleas taken by the plaintiff was that he had purchased the suit property but he failed to prove on record any sale deed in this regard in his favour. The relevant document in the present case is Exhibit D1 which was allegedly RSA 1964 of 2007 5 executed on 8.4.1997. The said document is duly signed by the parties. It has been noticed by the Courts below that the plaintiff had admitted his signatures on Exhibit D1. The plaintiff took up the plea that the agreement Exhibit D1 was got executed from him in Police Station. The case of the plaintiff is that his signatures were taken in the police station on blank papers on 1.7.1998, whereas, the document Exhibit D1 was executed on 8.4.1997. In order to prove the execution of agreement Exhibit D1, defendants examined Liyakat Ali as DW1, Kuldeep Singh scribe as DW2, Mam Chand, Attesting Witness as DW2A. Defendants also examined DW3 Baldev Raj in whose presence the agreement Exhibit D1 was executed. Defendants had taken the plea in the written statement that they had no concern with Plot No. 131 as it was owned and by possessed by the plaintiff and they had never interfered in his possession with regard to the said plot. So far as properties No. 120 and 122 are concerned, the same had fallen to the share of the defendants in the family settlement. Plaintiff also took up the plea that he had become owner of the suit property on account of adverse possession but had failed to prove the said plea. Moreover, the plea of adverse possession can be taken as defence but cannot be made basis for filing of the suit. No substantial question of law arises in this regular second appeal which would warrant interference by this Court . Accordingly, this appeal is dismissed. ( Sabina ) Judge October 22, 2009 arya