Kalu and Others vs Ayub and Others

Mehinder Singh Sullar, J.—The facts, that need a necessary mention, for disposal of present appeal and emanating from the record, are that Ayub, Yakub and Jafruddin sons of Rehman Khan respondent-plaintiffs (hereinafter to be referred as "the plaintiffs") filed the present suit for a decree of mandatory injunction against Kalu and others appellant-defendants (hereinafter to be referred as "the defendants") to hand over the possession of the encroached land, with a consequential relief of permanent injunction restraining them from further encroaching their remaining land, inter-alia, pleading that they (plaintiffs) are owners and in possession of the land in dispute bearing Khasra No. 135 measuring 1 Kanal 0 Marla. The defendants have no right, title or interest in the suit land, but on the strength of their physical, force and political influence, they have encroached upon some area measuring 200 square yards out of it, illegally six months ago without any basis and constructed two thatched roofs (Chhappars) over the same.

Concisely, according to the plaintiffs, they are owners and in possession of the disputed land, but the defendants have illegally encroached upon 200 square yards out of it and bent upon to encroach upon its remaining portion without any legal right. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of mandatory and permanent injunction against the defendants, in the manner indicated here-in-above.

The defendants contested the suit and filed the written statements, inter-alia, pleading certain preliminary objections of, maintainability of suit, estoppel, cause of action of the plaintiffs and jurisdiction etc. On merits, the defendants claimed that they are in possession of the disputed land for the last more than 40 years. They have raised construction over it 20 years ago within the knowledge and notice of the plaintiffs. The defendants have denied the ownership and possession of plaintiffs over the suit land. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

Controverting the allegations contained in the written statements and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case.

In order to substantiate their respective pleaded cases, the parties to the lis, produced on record the oral as well as documentary evidence.

Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decreed the suit of the plaintiffs and directed the defendants to remove the construction, to hand over the vacant possession of the encroached portion and were perpetually restrained them from interfering in the peaceful ownership and possession of the plaintiffs over the remaining suit land, by virtue of impugned judgment and decree dated 29.9.2009.

Aggrieved by the judgment and decree of the trial Court, the appellant-defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 23.4.2010.

The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is how, I am seized of the matter.

Having heard the learned Counsel for the appellant-defendants, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

However, the main arguments of the learned Counsel for appellant-defendants that the report of local commissioner was wrongly relied upon by the Courts below and since the plaintiffs have failed to prove their ownership and possession over the disputed property, so, the courts below fell in error in decreeing their suit, for mandatory and permanent injunction, are not devoid of merit but misplaced as well.

As is evident from the record, succinctly, the plaintiffs claimed that they are owners and in possession of the land in dispute bearing Khasra No. 135 measuring 1 Kanal 0 Marla. The defendants have encroached upon 200 square yards and intend to encroach upon the remaining portion out of the disputed property. Ex.P1 is the copy of jamabandi for the year 1995-96, depicting the plaintiffs as owners and in possession of the suit property. In order to ascertain the encroachment, the trial Court appointed the Office Kanungo as Local Commissioner to demarcate the suit property, by way of order dated 10.5.2006. In pursuance of this order, the Local Commissioner inspected the spot, took measurement after affixing three pacca points and demarcated the suit land, as per rules. Having followed the due procedure, he found that Kalu son of Mamrej defendant has encroached upon 6 karams in east, 4 karams in west, 11 karams in southern and northern sides each, total area measuring 0 kanal 6 marlas out of suit land bearing Khasra No. 135 (1K-0M). Since the local commissioner demarcated the land after following the due procedure, as per order of the trial Court, therefore, no fault can be found with his report indicating the encroached portion by Kalu defendant. That means, the plaintiffs have duly proved their ownership by producing copy of jamabandi (Ex.P1) and encroachment by Kalu defendant as projected in the report of local commissioner.

The other feeble argument of the learned Counsel that suit to claim joint relief for mandatory as well as permanent injunction at the same time, was not maintainable, again has no force. The perusal of the record would reveal that the plaintiffs have filed the suit for a decree of mandatory injunction for direction to the defendants to remove the thatched roofs from the encroached portion of 200 square yards and to hand over its possession to the plaintiffs. They have further sought the relief of permanent injunction directing the defendants not to further encroach upon any area out of the remaining suit land. Thus, there is no legal bar for plaintiffs to claim both the indicated reliefs in this relevant connection. Therefore, the Courts below have rightly accepted the claim of the plaintiffs and negatived the plea of adverse possession of the defendants in this regard. Therefore, the contrary arguments of learned Counsel for the appellant-defendants ''stricto sensu'' deserve to be and are hereby repelled, under the present set of circumstances.

No meaningful argument has been raised by the learned Counsel for the appellant-defendants to assail the findings of the Courts below in this behalf. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-defendants, in this respect, have already been duly considered and dealt with by the Courts below.

Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that the plaintiffs have proved their title and possession over the suit land and encroachment by the defendants over some portion of it. The defendants have led no such evidence and failed to plead or prove their adverse possession over it. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred u/s 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned Counsel for the appellant-defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.

Meaning thereby, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon''ble Apex Court in Kashmir Singh Vs. Harnam Singh and Another, , so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated u/s 100 CPC, in the obtaining circumstances of the present case.

No other legal point, worth consideration, has either been urged or pressed by the learned Counsel for the appellant-defendants.

In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed.