RSA No. 284 of 2003 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 284 of 2003 Date of decision: March 3,2009 Smt. Chotto and others ..Appellants. Versus Virender Singh and others ..Respondents Coram: Hon'ble Mr. Justice Rakesh Kumar Garg Present: Mr. J.K.Goel, Advocate for the appellants Mr. R.N.Lohan, Advocate for the respondents. .. Rakesh Kumar Garg,J. This is plaintiff’s second appeal challenging the judgment and decrees of the courts below whereby the suit for permanent injunction restraining the defendants not to encroach upon by way of construction etc. upon any part of the private land owned and possessed exclusively by the plaintiff as shown in the site plan attached with the suit and further restraining them from interfering in any manner whatsoever in the said suit land of the plaintiff illegally and forcibly has been dismissed. Tek Ram predecessor-in-interest of the appellant filed a suit seeking a decree for permanent injunction restraining the defendant from encroaching upon any part of the land of the plaintiff situated inside abadi deh and inside lal dora of village Nidana Tehsil and District Jind. As per the averments made in the civil suit, the plaintiff was an exclusive owner and in possession of the land shown with letters A B C D in green colour in the site plan attached with the suit situated within the abadi deh and Lal Dora of village Nidana, Tehsil and District Jind. The plaintiff was coming as owner in possession of the suit property since 60/70 years since the time of his ancestors. In the North of the suit property, there was house of the plaintiff and in East after street there was house of the plaintiff. The suit property was RSA No. 284 of 2003 2 being used by him for parking cattle cart, storing fuel wood, wooden sticks, cow dung cakes, cow dung cake hill, bricks, four wheeler and several other day to day domestic purposes. He had also installed a hand pump in the suit property. The defendants have no right, title or interest, authority or concern in the aforesaid suit property. The plaintiff had left eight feet wide land on Southern side of the suit property as private passage for use of Dharamvir son of Sehaj Ram resident of Nidana Tehsil and District Jind. The defendants who had no right, title or interest forcibly and illegally wanted to encroach upon the suit property by raising construction etc. The plaintiff several times asked the defendants to desist from their evil act and design but they were adamant, hence this suit. The defendants filed joint written statement while contesting the suit and raised various preliminary objections. It was also stated that the suit property was part and parcel of shamlat land of Thola Bhanta of village Nidana Tehsil and District Jind and comprised in Khasra No. 294 which was being used as street for common purposes since consolidation of holdings and prior thereto by residents of village Nidana and the same vested in Gram Panchayat Village Nidana and the Civil Court had no jurisdiction to entertain and try the suit under Section 13 of the Punjab Village Common Lands (Regulation) Act, 1961. The suit was bad for non-joinder of the necessary parties. The suit was filed at the instance of Dharamvir son of Sehaj Ram who wanted to encroach upon Public Street. The site plan submitted by the plaintiff was not correct. On merits, the defendants asserted that that plaintiff had no concern whatsoever with the ownership and possession of the suit property as the same was a common street and part of Khasra No.294. All other allegations of the plaint were denied and dismissal of the suit was prayed for. The trial Court vide judgment and decree dated 16.1.1999 dismissed the suit of the plaintiff. While dismissing the suit, the trial Court held that plaintiff failed to prove that he was owner in possession of the suit property and defendants also failed to prove that the suit property was Common Street and Bachat land of RSA No. 284 of 2003 3 Thola Bhanta. Hence plaintiff was not entitled to the relief of permanent injunction. It was also held that plaintiff had no concern with ownership and possession of the suit property. Feeling aggrieved with the impugned judgment and decree dated 16.1.1999, plaintiff filed an appeal and the defendant also filed cross-objections. The lower Appellate Court vide impugned judgment and decree dated 4.12.2002 held that the plaintiff had failed to prove his ownership and possession over the suit property whereas defendants have succeeded in proving that suit property is Bachat Land of Thola Bhanta and there is a street in the suit property. It was also observed that the site plan produced by the appellant was not as per the existing possession of the suit property and the appeal filed by the plaintiff was dismissed. Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decree of the courts below in this Court. Along with this appeal, the appellant has also filed an application under Order 41 Rule 27 read with Section 151 CPC for permission to file additional evidence in the shape of site plan dated 29.10.1991 placed as Ex.D1 by the respondents in Civil Suit No.374 of 22.10.1991 titled as Dharamvir Singh Versus Khajan Singh and others, in the court of Shri R.S. Bagri, Additional Civil Judge, (Sr. Division), Jind on the ground that the respondents have filed a wrong site plan in this court in the shape of Ex.D2. As per this application, the aforesaid site plan was prepared by the same Architect on 29.10.1991. The appellant came to know about this site plan on 10.12.2002 and immediately thereafter, applied for certified copy and got the same on 13.12.2002. The said site plan is necessary for the proper adjudication of this case. Learned counsel for the appellant has vehemently argued that the land in dispute is abadi deh and is situated within Lal Dora which was inherited by him from his ancestral and the appellant has successfully proved that they are owners in possession of the suit land. The courts below have not considered the evidence on record which has resulted into perversity of the findings of the RSA No. 284 of 2003 4 courts below and therefore, the following substantial questions of law arises in this appeal:- i) Whether or not the respondents have filed a frivolous site plan before the courts below? ii) Whether or not the respondents have concealed the true and material facts from the court? iii) Whether or not learned courts below have misread and misinterpreted the statement of the respective parties? On the other hand, learned counsel appearing on behalf of the respondents has supported the findings of the courts below and has argued that on appreciation of evidence, a finding of fact has been recorded by the courts below that there is no cogent and convincing evidence on behalf of the plaintiff to prove his ownership and possession over the suit property and therefore, this appeal is liable to be dismissed. I have heard learned counsel for the parties and perused the record of the appeal. While dismissing the appeal filed by the appellant, the lower Appellate Court after appreciating the evidence on record observed as under:- “After hearing both the sides at length and going through the case file very carefully at the very outset, I am of the considered view that arguments advanced by learned counsel for the appellant are devoid of force whereas arguments advanced by learned counsel for the respondents are forceful. The burden to prove ownership and possession over the suit property was on the plaintiff but there is no cogent and convincing evidence on behalf of the plaintiff to prove his ownership and possession over the suit property. Hence, I have no hesitation in concluding that plaintiff miserably failed to prove his ownership and possession over the suit property whereas from the statement of DW1 to DW5 and documents Ex.D1 and D2 defendants succeeded in proving that the suit RSA No. 284 of 2003 5 property is bachat land of Thola Bhanta and there exists a street in the suit property, hence plaintiff is not entitled for any relief of permanent injunction. “ Learned counsel for the appellant was unable to point out that document sought to be produced on record by way of additional evidence was helpful to the appellant in any manner and therefore, I find no ground to allow the appellant at this stage to lead additional evidence of the same and the aforesaid application is therefore, dismissed. In the light of the findings recorded by the courts below that plaintiff has failed to prove his ownership and possession over the suit property and there esists a street in the suit property and the fact that appellant has failed to point out any misreading or mis interpretation in the evidence on record while recording these findings. I find no merit in this appeal. No substantial question of law arises. Dismissed. March 3,2009 (RAKESH KUMAR GARG) nk JUDGE