Gram Panchayat Bhora Kalan vs Kesar Devi and Others

L.N. Mittal, J.—Defendant No. 1 - Gram Panchayat, having remained partly unsuccessful in both the courts below, is in second appeal.

Respondent No. 1 - Plaintiff Kesar Devi filed suit against Appellant and Respondents No. 2 and 3 as contesting Defendants and several other persons as proforma Defendants, who are not party before this Court nor were party in the lower appellate court. The Plaintiff alleged that she and proforma Defendants are co-owners in joint possession of the suit land R. S. A. No. 1726 of 2008 measuring 122 kanals. Defendants No. 2 and 3 (officials of Haryana Vidyut Prasar Nigam), in collusion with Defendant No. 1, wanted to construct power house over the suit land without any right, title or interest in the suit land. Accordingly, the Plaintiff sought permanent injunction restraining Defendants No. 1 to 3 from encroaching upon the suit land and from constructing power house thereon and from dispossessing the Plaintiff and proforma Defendants therefrom.

Defendant No. 1 contested the suit and referred to previous litigation between the parties. It was also pleaded that Defendant No. 1 is owner in possession of the suit land and Plaintiff and proforma Defendants are neither owners nor in possession thereof. Dholidar of the suit land was ordered to be ejected vide order of Assistant Collector dated 14.08.1980. Suit land was mutated in favour of State of Haryana, which was successfully challenged by Defendant No. 1 - Appellant. Now, Defendant No. 1 has given 05 acres of land out of the suit land to Defendants No. 2 and 3 for construction of power house. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Gurgaon, vide judgment and decree dated 28.04.2006, held the Plaintiff and proforma Defendants to be in joint possession of the suit land, but held that they are not owners thereof and consequently, decreed the suit partly. Defendant No. 1 preferred first appeal against judgment and decree of the trial court, whereas Respondent No. 1 - Plaintiff filed cross-objections therein. Learned R. S. A. No. 1726 of 2008 Additional District Judge, Gurgaon, vide judgment and decree dated 17.01.2007, dismissed the appeal as well as the cross-objections. Feeling aggrieved, Defendant No. 1 has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the Appellant vehemently contended that the Plaintiff sought relief on the basis of ownership of Plaintiff and proforma Defendants over the suit land, but they were not found to be owners of the suit land and therefore, no relief could be granted to them.

On the other hand, learned Counsel for Respondent No. 1 - Plaintiff contended that Plaintiff and proforma Defendants have been found to be in possession of the suit land and therefore, the suit has been rightly decreed partly.

I have carefully considered the rival contentions. It is the case of Defendant No. 1 - Appellant that earlier Plaintiff and proforma Defendants (including their predecessors) were in possession of the suit land and ejectment order was passed against them by Assistant Collector on application moved by Defendant No. 1. However, there is no evidence on record to depict that pursuant to the said ejectment order, Defendant No. 1 ever took actual possession of the suit land from Plaintiff or proforma Defendants or their predecessors. Consequently, finding of the courts below that Plaintiff and proforma Defendants are in possession of the suit land R. S. A. No. 1726 of 2008 cannot be faulted with. The said finding is based on appreciation of evidence and is supported by cogent reasons and is not shown to be perverse or illegal so as to call for interference in second appeal. Consequently, Plaintiff and proforma Defendants cannot be dispossessed from the suit land by Defendant No. 1 - Appellant, except in due course of law. Suit of the Plaintiff has been rightly decreed to this extent partly by the courts below.

For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. It is, however, expressly made clear that Defendant No. 1 - Appellant shall be at liberty to take possession of the suit land in due course of law.