Dev Raj vs Mohinder Singh and Another

Mahesh Grover, J.—This appeal is directed against judgments and decrees dated 1st April, 2002 and 22nd November, 2004 passed respectively by the Civil Judge (Junior Division), Dasuya (hereinafter described as ''the trial Court'') and the Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur (referred to hereinafter as ''the First Appellate Court'') whereby the suit and the appeal of the Plaintiff-Appellant have been dismissed.

The Appellant filed a suit primarily for grant of permanent injunction against the Defendants-Respondents for restraining them from raising construction or making any encroachment on the land measuring 2 marlas situated in village Behbowal, Hadbast No. 224 and comprised in Khewat No. 437. In the alternative, he prayed that a decree for possession after removal of the super structure of any kind may be passed.

It was pleaded that the Appellant had purchased the land in dispute,--vide sale deed dated 7th June, 1985 from Jit Singh son of Waryam Singh for a consideration of Rs. 300 and its khasra number was 189. It was further pleaded that he was owner and in exclusive possession of the suit land along with his co-sharer Jit Singh and that the Respondents were trying to interfere with his peaceful possession and intended to raise construction thereon. In the alternative, the Appellant had pleaded that in the event the Court comes to the conclusion that he was not in possession of the suit land, then possession of the same be got handed over to him after removal of any kind of structure thereon.

The Respondents filed written statement and a counter-claim and averred that the Appellant himself had surrendered possession of khasra No. 189 in their favour in lieu of the passage which was comprised in khasra No. 183/1 and this passage is the only ingress and egress to the village Phirani for their land comprised in khasra Nos. 189, 190 and 191. It was pleaded that the Appellant had raised construction over this passage and has blocked the same in the year 1995 which led to a dispute and the matter was settled before the police of Police Station, Hajipur where a compromise was effected in writing on 7th January, 1995. According to this compromise, the Appellant had given the land comprised in khasra No. 189 to them in lieu of the land which is comprised in khasra No. 183/1 and the Respondents thereafter raised boundary wall around khasra Nos. 189, 190 and 191. It was further pleaded that the Appellant is estopped by his own conduct to file the suit and he had no right, title or claim over khasra No. 189.

The Appellant filed replication and also a reply to the counter-claim and denied the averments made in the written statement and the counter-claim. It was pleaded by him that in lieu of the land comprised in khasra No. 183/1, khasra No. 9/18/1 (0-3) was carved out by the Additional Director of Consolidation of Holdings, Punjab,--vide orders dated 16th January, 1996 and 13th June, 1996 and a mutation to this effect was also sanctioned in favour of Amar Nath, who was his father. It was averred that Amar Nath was the owner of khasra No. 9/18/1, who had filed an application for carving out a separate passage from khasra No. 183/1 and the same was done by the competent authority,--vide the aforesaid orders. This passage was also being used for ingress and egress to khasra Nos. 190, 191 and 192 and also to the road.

Both the parties went to trial on the following issues:

Whether the Plaintiff is entitled to the injunction as prayed for ? OPP

Whether the Defendants are entitled to the counter claim as alleged in the written statement ? OPD

Whether the suit is not properly valued for the purpose of court fee ? OPD

Whether the present suit is not maintainable ? OPD

Relief.

After appraisal of the entire evidence before it, the trial Court dismissed the suit of the Appellant.

In appeal, the findings of the trial Court were affirmed by the first Appellate Court.

Feeling aggrieved by the findings of the Courts below, the Appellant has filed this appeal.

Learned Counsel for the Appellant contended that both the Courts below have concluded that the Appellant had failed to prove his possession and further concluded that a compromise had been effected between the parties as a result of which land comprised in khasra No. 189 was given to the Respondents while they were permitted to use the same as passage in lieu of land comprised in khasra No. 183/1. While assailing this finding, he pointed out that the same are erroneous and contrary to the record. He argued that the factum of ownership of khasra No. 189 has not been disputed by the Respondent. Rather, they set up a plea that the land comprised in khasra No. 183/1 was encroached upon by the Appellant which led to a dispute and a compromise was effected between the parties and the same was reduced into writing on 7th January, 1995. He submitted that the said compromise was never produced in evidence and, therefore, the findings which are based on that compromise are erroneous and perverse. He further submitted that during the pendency of the suit, the Appellant was dispossessed and an application to that effect was moved before the Sub-Divisional Magistrate, who appointed Kanungo to look into the matter by carrying out demarcation and establish as to whether there was any encroachment by the Respondent or not. The Kanungo reported that there was encroachment by the Respondents, who had raised the foundation in the area in question. This Kanungo was examined by the Appellant as PW2 to prove his report. In this view of the matter when concededly the encroachment was established on khasra No. 189 which was in the ownership and possession of the Appellant prior to the filing of the suit, the Court below ought to have considered this report while determining the factum of encroachment and ought to have granted possession of the same to him.

On the other hand, learned Counsel for the Respondents has contended that on a dispute having arisen in the year 1995, a compromise was validly executed between the parties and the land comprised in khasra No. 189 was given to them in lieu of the passage falling in khasra No. 183/1. It was next contended that the Appellant has approached the Court by pleading that he was owner of the land in dispute on the basis of a sale deed but that sale deed was never produced in evidence and, therefore, it was doubtful as to whether he was owner of the same or not. Learned Counsel for the Respondents has argued that the Appellant has not given the particulars as to when he was dispossessed from the suit land and when the cause of action accrued to him and, therefore, the suit was liable to be dismissed and the Courts below have rightly done so.

I have thoughtfully considered the respective contentions/ arguments and have carefully perused the record.

From the pleadings and evidence on record, it emerges that the Appellant was the owner of the land in dispute comprised in khasra No. 189. In their written statement, the Respondents have not denied the factum of the Appellant being owner of the suit land on the basis of the sale deed. In this view of the matter, there was no other evidence which was required to be looked into regarding the question of ownership.

It has also come on record by way of the report of the Kanungo which was adequately proved by the testimony of PW2 that there was encroachment over the suit land which was made by the Respondents, who were also associated with this enquiry. Thus, there is little gain-saying in the plea raised by the Respondents that the Appellant has failed to prove his ownership and possession over the suit land. They have failed to dislodge the effect of the report of the Kanungo and his testimony to that effect.

The plea of the Respondents raised regarding the exchange of the land comprised in khasra No. 189 with the land of Khasra No. 183/1 is also without any merit. There is no evidence to suggest that any compromise of that kind had been effected. Both the Courts have unnecessarily stretched the logic to derive the inference which has resulted in the findings which can, at best, be termed to be perverse. The Respondents also very conveniently withdrew their counter-claim once they were confronted with a denial, and pleadings, which had the capability to impact the plea raised by them in the counter claim, to be negatived. They also pleaded that it was the Appellant who had encroached upon khasra No. 183/1. This plea could have been tested, had the counter-claim been alive or separate suit had been filed, but as observed earlier, the counter-claim was withdrawn. Rather, a statement was given before the trial Court by the counsel for the Defendants on 27th March, 2002, the English translation of which is to the following effect:

Stated that the Plaintiff is in possession of the suit land and the Defendants will never interfere in the possession of the Plaintiff over the land in dispute. We will taken the possession from the Plaintiff through the process of law for which the Defendants will file a separate suit. The counter-claim regarding taking possession of the land in dispute made in the written statement is hereby withdrawn. The Defendants will be bound by this statement.

In this view of the matter, when the ownership of the Appellant was never questioned and the plea as raised by the Respondents was also never tested on the basis of the cogent evidence in the shape of the compromise and also in view of the fact that the Sub Divisional Magistrate had directed the Kanungo to carry out the demarcation, who found as a matter of fact that encroachment had been made by the Respondents on the land in dispute, I am of the opinion that the question of law as framed,--vide order dated 25th February, 2005 and which is reproduced below deserves to be answered in the affirmative to hold that in view of the evidence on record regarding the undisputed fact of the Appellant being owner of the suit land and the Respondent having encroached upon it, he was entitled to the possession thereof:

Whether the Plaintiff having proved his ownership is entitled to decree for possession of the suit land ?

The appeal is, accordingly, accepted, the impugned judgments and decrees are set aside and the suit of the Appellant is decreed and he is held entitled to possession of the suit land.