Regular Second Appeal No. 4512 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4512 of 2011 Date of Decision: 16.11.2011 *** Ram Niwas .. Appellant VS. Attar Singh & Ors. .. Respondents CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Suresh Ahlawat, Advocate for the appellant. *** ARVIND KUMAR, J. The present appellant was defendant No.2 in the suit filed by respondent No.1 herein, for permanent injunction restraining the defendants in the suit from dispossessing the plaintiff from the suit land and also the mandatory injunction directing defendant No.6 Society not to harvest crop sown on the suit land. It was the case of the plaintiff that earlier his forefathers were owner of the suit land and his name was entered as owner in the year 1977. However, the President of the Society wants to incorporate the name of defendant No. 2 as owner in place of the plaintiff, to which the President has no right. The stand of the defendants, on the other hand, was that the plaintiff was never the member of the Society, rather father of defendant No.2 namely Manphool @ Ramphal was owner of the suit land and after his death defendant No.2 and Samunder being sons applied for succession, while the plaintiff has no concern with the same. After the contest, the learned trial Court dismissed the suit. It is relevant to note here what the learned trial Court observed while dismissing the suit of the plaintiff:- “10. Undoubtedly, from Ex.PW3/1, it is clear that plaintiff's father Jage Ram was a member of the society Regular Second Appeal No. 4512 of 2011 2 as his name figures at Serial No.15 and Manphool has been recorded as his nominee. There is no doubt about the fact that Manphul had nominated the plaintiff as his nominee, which is reflected in Ex.PW3/2 where Manphul figured that number 15/29 and Attar Singh is mentioned as his nominee. Thus, clearly on death of Jage Ram, Ramphool @ Manphul could have been made a member only on behalf of the legal heirs of Jage Ram, which happens to be the plaintiff. But even if Manphul was made a member in his own right being a nominee of Jage Ram, the plaintiff having been recorded as his nominee would automatically become member of the society. Thus, the plaintiff is clearly entitled to be held as a member of the Society as legal representative of his father Jage Ram and also as a nominee of Manphul. However, the fact remains that the plaintiff has not sought a declaration about his legal rights; rather he has filed the present suit seeking permanent injunction as well as mandatory injunction restraining the defendants from dispossessing the plaintiff and directing them not to harvest the crop. There is not even an iota of evidence on record to show that plaintiff is in possession of the suit property” Thus, it was accordingly held that the person who is not in possession of the suit land is not entitled to seek permanent injunction without seeking the relief of restoration of possession. However, aggrieved with the same, the plaintiff preferred an appeal before the Court below, which reversed the findings of the learned trial Court and decreed the suit of the plaintiff, for the following reasons, as discernible from perusal of sub paras of para 12 of the impugned judgment :- “(i) Admittedly appellant-plaintiff Attar Singh is real son of Jage Ram who was member of the society and was Regular Second Appeal No. 4512 of 2011 3 given the suit land for cultivation by it. Since by that time he had not taken birth so Jage Ram admittedly made his brother Ramphool as his nominee and thus after his death he automatically became its member. (ii) Admittedly Ramphool also nominated his nephew i.e. appellant-plaintiff as his nominee, because he had derived his cultivating right in the suit land from him. Undisputedly only a member of the society can cultivate the suit land. It does not lie in the mouth of learned counsel for the respondents-defendant that appellant- plaintiff was never made member of the society vide resolution mark P3 because due to some clerical and inadvertent mistake resolution dated 10.07.2006 was marked as P3 instead of resolution dated 16.11.2006 whereby appellant-plaintiff was made member of the society as both the aforesaid resolutions were inadvertently photocopied on a single page. Hence he cannot be permitted to take benefit of such inadvertent mistake. Contrary to it respondent-defendant No.2 Ram Niwas has miserably failed to prove his membership with the society and since he is not member of it, therefore, cannot be said to be in possession of the suit land. There is nothing on the record to show that members of the society by passing resolution could effect the right of a bonafide member and thus allotment of the suit land in equal shares to the appellant-plaintiff and respondent- defendant No.2 vide aforesaid resolution mark-P3 was certainly wrong, illegal and has no binding effect upon the right of appellant-plaintiff. The facts and circumstances of present case are distinguishable from the facts of Didar Singh Vs. Mohinder Singh, 2004(1) LJR 34 (P&H), Shamshad Shafi Vs. Sale Officer, 1999(1) LJR 664(P&H) and Harchand Singh Vs. The Khiala Kalan Agricultural Cooperative Service Society Ltd. & Regular Second Appeal No. 4512 of 2011 4 others, 1983(1) All India Law Reporter 138(P&H) (supra) relied upon by learned counsel for the respondent-defendant and, therefore, no benefit whatsoever of the same can be given to them. (iii) The present suit was for permanent injunction. Since respondent-defendant No.2 has miserably failed to prove his membership with the society, therefore, he could not have been cultivated the suit land and hence finding of learned trial court that he was in actual possession over the suit land are wrong and illegal. Resultantly same is hereby reversed. Both the issue No.1 and 2 are decided in favour of the appellant-plaintiff.” From the above findings, it is clear that earlier the father of the plaintiff was the owner of the suit land. Since plaintiff was not born by that time, therefore, he nominated his brother Manphul @ Ramphal, father of defendant No.2 as his nominee and later said Ramphul @ Ramphal declared the plaintiff as his nominee, for the obvious reason that he derived his cultivating right in the suit land from him. As per evidence on record the plaintiff was made member of the Society, whereas the defendant failed to show that he was ever made member of the Society. It has also come on record that only the member of the society can cultivate the suit land. In this view of the matter, it was rightly held by the learned appellate Court that the learned trial Court has wrongly held defendant No.2 as in possession of the suit property, whereas plaintiff being owner in possession of the suit land is entitled for protection of his possession and thus, rightly decreed the suit. There is no room to interfere with the findings recorded by the appellate Court below which are neither illegal nor perverse. No substantial question of law arises in the instant regular second appeal. Finding no merits in the instant appeal, the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE November 16,2011 Jiten