Maya Devi vs Tarlochan Singh Cheema

Mahesh Grover, J.

1 These are plaintiffs'' appeals directed against the judgments of the learned trial Court dated 11.3.2006 and that of the learned Lower Appellate Court dated 1.9.2008.

2 A suit for permanent injunction was filed by the appellants R.S.A. No. 4103 of 2008(O&M)2 seeking to restrain the respondents from interfering into their possession and it was pleaded that they are in possession of the property in the shape of a constructed shop which was earlier a part of Plot No.39 in the year 196970. Earlier, their predecessorininterest i.e. their father Lekh Raj was in possession of the suit property since 196263 and he had raised construction of an ice factory and cotton ginning machine. It was further pleaded that the property had undergone numerous changes in so far as the numbering for the purpose of identification in the municipal record was concerned. It was also pleaded that the respondents are bent upon to interfere in their peaceful possession. It was further pleaded that they are the legal heirs of their father Lekh Raj who had succeeded in the earlier suit in which he had claimed ownership by way of adverse possession vide decree dated 26.9.1991.

3 Some of the respondents (defendants No. 4 and 5 in the suit) were proceeded exparte and others (defendants No. 2 and 3) absented themselves leaving only the respondent No. 1 (defendant No. 1 in the suit) as the sole contesting respondent. It was pleaded in the written statement that the construction of the suit property was raised by them after taking necessary permission from the Municipal Committee, Pehowa and that they had purchased the suit property vide different sale deeds. A counterclaim was preferred by them seeking a decree for mandatory injunction directing the appellants to hand over the vacant possession of the suit property to them. It was alleged in the counterclaim that the plaintiffs/appellants had forcibly taken the possession in the month of July 1999. It was further R.S.A. No. 4103 of 2008(O&M)3 pleaded that the suit property was earlier a part and parcel of land measuring 8 kanals 14 marlas comprised in Khasra No. 71/28.

4 The learned trial Court on the pleadings of the parties framed the following issues :

Whether the plaintiffs are lawfully in possession over the suit land described in para No. 1 of the plaint ? OPP

If issue No. 1 is proved, whether the plaintiffs deserve the relief of permanent injunction against the defendants on the grounds mentioned in the plaint ? OPP

Whether the suit filed through counter claim by the defendants is not properly valued for the purposes of court fee and jurisdiction ? OPP

Whether the plaintiffs have no locus standi to file the present suit ? OPD

Whether the plaintiffs have concealed the true and material facts from the Court and not entitled for relief of injunction ? OPD

Whether defendant No. 1 is owner in possession of the suit land and is entitled to the vacant possession of the suit property ? OPD

If issue No. 6 is proved, whether the counterclaim of the defendants is time barred ? OPD

If issue No. 6 is proved, whether the plaintiffs cannot be vexed again and again and the matter is res R.S.A. No. 4103 of 2008(O&M)4 judicata ? OPD

Whether the plaintiffs are not in possession of the suit land at the time of institution of the present suit ? OPD.

Relief.

5 Both the parties adduced the evidence the details of which are reflected in paras 5 and 6 of the impugned judgment.

6 The trial Court dismissed the suit of the plaintiffs/appellants and decreed the counterclaim of the respondents as a result the appellants were directed to hand over the vacant possession of the suit land to the respondents within one month from the date of the judgment i.e. 11.3.2006.

7 In appeals, the findings were affirmed resulting in the filing of present regular second appeals.

8 I have heard the learned counsel for the appellants who has contended that their father Lekh Raj was in possession of the suit property since 1962 63 and that they had become the owners by way of adverse possession although the copy of the judgment dated 26.9.1991 could not be produced in evidence despite an attempt having been made to produce the same by way of additional evidence. It was next contended that the findings recorded by the Courts below are erroneous as the consistent possession of the appellants since 196263 has been ignored.

9 On perusal of the impugned judgments, the contentions raised by the learned counsel for the appellants are found to be without any merit. The property which has been shown in red colour R.S.A. No. 4103 of 2008(O&M) 5 in the site plan Ex.PW1/A measuring 25'' x 16'', according to the appellants, was a part of Plot No. 39/3 in the year 196970. This property underwent numerous changes in so far as the numbering for the purpose of identification in the municipal record was concerned. It was property No.88/4 in the year 197374, property No. 91/4 in the year 197576, property No. 115/4 in the year 197980, property No. 131/4 in the year 198081, property No. 121/A in the year 198283, property No. 378/3 in the year 198586, property No. 505/3 in the year 199798 and property Nos. 195 to 197/12 MCP in the year 199899. In support of their plea the appellants had also produced the housetax assessment registers from where also the identification of the property remained weak and it could not be ascertained as to whether the property which was being claimed by the respondents as their ownership on the basis of sale deeds was the same which was allegedly in occupation of the appellants. That apart, the appellants had claimed that they were running an ice factory and cotton ginning machine in the premises. No evidence was produced to that effect.

10 It is also to be noticed that the appellants did not adduce any evidence in the positive as none of the appellants stepped into the witness box and the only evidence was led in rebuttal to the counterclaim. That apart, a Local Commissioner had visited the site on 13.9.2005 and had submitted his report Ex.D8 and had carried out the demarcation in the presence of Patwari and several other persons. But the appellant Narinder Pal absented himself at the time of demarcation. Even the objections filed to the report of the Local Commissioner were not backed by any evidence. R.S.A. No. 4103 of 2008(O&M)6 In this view of the matter, when concurrent findings of fact have been recorded by both the Courts below and in the absence of any substantial question of law having been shown to have arisen in the present appeals, the same are totally without any merit and are accordingly dismissed.