RSA No.330 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 330 of 2010 (O&M) Date of decision: May 19,2011 Prabhudayal .....Appellant Versus Shri Sanatan Dharam Sabha and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.C.B.Goel, Advocate for the appellant. **** SABINA, J. Plaintiff-Sabha had filed a suit for declaration, permanent injunction and possession. The case of the plaintiff, in brief, was that the plaintiff-Sabha was duly registered with the Registrar of the Societies, Haryana. The Sabha was engaged in social welfare and religious activities. An Ancient temple was situated in the land bearing khasra nos. 1318 and 1319. The area was now within the Municipal limits of Gurgaon. Ancient idols in the Temple were in existence since long. The temple was used for worship by the public and had been managed and looked after and maintained by the plaintiff. A free school upto primary level was also being run in the suit property. RSA No.330 of 2010 (O&M) 2 Dharamshala existing at the spot was being used by the public at large. Ten shops had been constructed by the plaintiff-Sabha in the year 1987 for meeting the day to day expenditures of temple, Dharmshala and Piao etc. Defendants were threatening to encroach upon the property of the plaintiff. In the year 1998, defendant No.2 had occupied a portion of the suit property by raising temporary construction in an illegal and unauthorized manner. The said construction was marked with the letters `ABCD' in the site plan. Defendant No.2 was asked to remove the same and hand over the vacant possession. However, defendants had started collecting building material at the spot to encroach over the adjoining land in an unauthorized manner. Plaintiff had filed civil suit No. 5 of 2.1.1996 against the defendants. Defendant No.1 disclosed that a decree had been passed in their favour on 4.1.1994 declaring them owners of the suit property. Plaintiff moved an application for withdrawal of the suit with permission to file a fresh one on the same cause of action. Hence, the present suit was filed by the plaintiff challenging the decree dated 4.1.1994. Defendants, in their written statement, averred that the plaintiff had no concern with the suit property. A temple known as Daronacharya Mandir was in existence but it did not form part of khasra Nos. 1318 and 1319. It was denied that the said temple was being managed and maintained by the plaintiff. The school existing near the temple was being run out of the income derived from the shop used by Ishwar Chand Jhamb. The decree passed by the Civil Court dated 4.1.1994 was legal and binding. Defendants also filed a counter claim seeking decree for permanent injunction restraining the RSA No.330 of 2010 (O&M) 3 plaintiff from demolishing the suit property. On the pleadings of the parties,following issues were framed by the trial Court:- “1. Whether the plaintiff is registered with Registrar of Societies, Haryana, as alleged?OPP 2. Whether there exist, Guru Dronachayara Temple, pond and Dharamshala in Khasra No.1318, 1319, as alleged?OPP 3.Whether defendant no.2 had encroached upon part of the suit property shown in red colour in the site plan attached with the plaint as alleged?OPP 4.Whether defendants have no right, title in the suit property and have raised unauthorized construction as alleged?OPP 5.Whether the judgment and decree dated 4.1.94 passed in favour of defendant no.1 by the Court of Senior Sub Judge, Gurgaon are illegal, void, nonest and not binding on plaintiff as alleged?OPP 6.Whether suit has not been filed through authorized person and if so to what effect?OPP 7.Whether the plaintiff has no locus standi and no cause of action to file the present suit?OPP 8.Whether plaintiff is estopped by its own act, admission, conduct, acquiescence from filing the present suit as alleged?OPD 9.Whether defendant no.1 has become owner of the suit property vide civil court decree and by adverse possession also as alleged/?OPD RSA No.330 of 2010 (O&M) 4 10.Whether the suit is bad for non-joiner and mis-joinder of necessary party as alleged?OPD 11.Whether the suit is not within limitation?OPD 12.Whether the suit is not properly valued for purpose of court fee and jurisdiction as alleged?OPD 13. Relief” The Additional Civil Judge (Senior Division) vide judgment and decree dated 24.3.2007, decreed the suit of the plaintiff to the effect that decree dated 4.1.1994 passed in civil suit No.481 of 1994 was illegal, null and void. Defendants were restrained from raising further construction in the property. Aggrieved by the said judgment and decree, defendant No.1 preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 16.2.2009. Hence, the present appeal by defendant No.1 After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. The defendants had based their claim qua the suit property on the basis of the Civil Court judgment and decree dated 4.1.1994, Exhibit P15 and Exhibit P16 respectively. Appellant had filed civil suit No. 481 of 1994 against his father qua H.No. 220/7, situated in Bhimnagar, Gurgaon near Darnocharya Mandir. In the said suit defendant-Moti Ram admitted the claim of the appellant and , consequently the suit filed by the appellant was decreed. It was necessary for the appellant to establish that his father was owner of the suit property and,hence, the decree suffered by his father in his favour was liable to be upheld. The case of the appellant was that his father was owner of the suit property by way of adverse RSA No.330 of 2010 (O&M) 5 possession,whereas, in his cross-examination, he took up the plea that the suit property had been allotted to his father by the Deputy Commissioner. However, the details of the allotment could not be specified by the appellant. The document qua the allotment of the suit property in favour of the father of the appellant was not produced on record. The appellant had failed to establish that he had become owner of the suit property by way of adverse possession. In these circumstances, the decree dated 4.1.1994 passed on the basis of family settlement was liable to be set aside as Moti Ram could not suffer a decree in favour of the appellant qua a property which was not owned by him. Appellant proved on record entries made in the municipal record qua House No.220/7 in his favour. However, the plaintiff examined PW6 Rajinder who deposed that the application moved by the appellant for compounding the unauthorized construction over the suit property was dismissed as he had failed to produce on record any document of title. Both the Courts below, after appreciating the evidence led by by the parties on record, have given a finding of fact that the appellant had no concern with the suit property. The said finding of fact calls for no interference by this court. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge May 19, 2011 arya RSA No.330 of 2010 (O&M) 6