Mohan Lal vs Ashwani Kumar and Others

Rakesh Kumar Garg, J.—This is plaintiff''s second appeal challenging the judgment and decree of the Lower Appellate Court dated 16.04.2014 whereby while accepting the appeal of the defendant-respondents, the judgment and decree of the trial Court has been set aside and suit of the appellant has been dismissed.

Appellant filed the instant suit for permanent injunction alleging that he is in possession over the suit property since 1947 as after the partition, his ancestors commenced residing in the house in dispute. It is the case of the appellant that respondents want to construct boundary wall to cover the suit property which shall close his business being run by him from a shop situated in the house. Hence, necessity has arisen to file the suit.

Upon notice, defendant/respondents appeared and filed written statement raising various preliminary objections. On merits, it was stated that appellant was not the original inhabitant of village and his father migrated from Pakistan in the year 1947 and inhabitants of the village allowed his father to raise a shelter for his family. After demise of his father, the plaintiff started encroaching the adjoining property. The respondents are the members of the village proprietary body as well as proprietors of the village Lonanangal. Their forefathers brought a sapling from Rajasthan and planted the same in the village about 600 years back in a plot comprised in Khasra No. 107 measuring 10 marlas. They referred the said plant as a symbol of their forefathers and pay obeisance to that plant on family functions and langar every year to pay respect to their forefathers and the plaintiff-appellant, who had purchased plot comprised in khasra number 108, taking advantage of his political approach has forcibly opened doors and windows of his house towards the plot comprised in khasra No. 107 by illegal and forcible claim over the said plot to which he has no right. Thus, dismissal of the suit was prayed for.

No replication was filed by the plaintiff-appellant.

From the pleadings of the parties, following issues were framed:-

Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP

Whether the plaintiff has got no locus standi to file the present suit? OPD

Relief.

Upon appraisal of the evidence so led by the parties and appreciating their arguments, trial Court decreed the suit of the plaintiff vide judgment and decree dated 12.11.2011.

Defendants filed an appeal against the aforesaid judgment and decree of the trial Court which was accepted vide impugned judgment and decree dated 16.4.2014. While accepting the appeal, lower Appellate Court observed as under:-

The plaintiff is the master of his case and he has to prove his case by leading cogent and convincing evidence that he is in possession over the suit property. While appearing in the witness box as PW-1 plaintiff Mohan Lal has admitted in his cross-examination that he does not have any documentary evidence with him regarding allotment of the property in dispute in favour of his father or in his favour. Plaintiff has also admitted that the house in dispute is constructed in Khasra No. 107.

By going through the Jamabandi qua the suit property for the year 2005-06 Ex. P-3 it reveals that suit property is ownership of Panchayat Deh and Bashindgah Deh is in cultivating possession. Same picture is depicted in Jamabandi qua the suit property for the year 1980-81 Ex. D-2 and Jamabandi qua the suit property for the year 2005-2006. The plaintiff is not shown in possession over the suit proper bearing khasra No. 107 which is Panchayat Deh. Plaintiff in order to prove his case has placed on record any site plant Ex. P-1. From this document, possession of plaintiff over the disputed property cannot be established. As per revenue record the suit property is ownership of Panchayat Deh and Bashindgah Deh is in cultivating possession. The plaintiff has failed to lead any cogent and convincing evidence to establish that he is in possession over the suit property. In case titled ''Mohan Lal vs. Mohan Singh 1996 (1) Civil Court Case 20 (P & H)'' it has been held by Hon''ble Punjab and Haryana High Court that in case involving public properties and public interest, besides three ingredients i.e. a strong prima facie case, balance of conventicles and irreparable injury, the Courts have to bear in mind as to whether the grant of injunction would be conductive or detrimental to public interest. The Courts have to take note of the fact that government lands belonging to the public at large and the community as a while is entitled to enjoy the properties belonging to the Government. In fact, the Government holds property as a trustee of the people and therefore, where any attempt is made by an individual or a group of individuals to misappropriate/misuse or otherwise interfere with the enjoyment of public property by the people in general, the Courts have to be extremely cautious in granting injunction in favour of such person only on the ground that he is in possession of the property. Possession of public property by such an individual or a group of individuals is no possession in the eyes of law. Such a person cannot claim any right whatsoever on the basis of unlawful occupation of the public property and Courts would be justified in declining any assistance to such a person. In such like case, a plaintiff cannot claim a parity with a person who has a dispute with another individual over a private property. Moreover, the Courts have to act as guardian of the public property and should not pass an order of injunction in favour of a person who has made unauthorized. Encroachment of the public property.

In view of the above provisions of law and the fact that plaintiff has failed to prove his possession over the suit property by producing any documentary evidence, I am of the considered opinion that the plaintiff/respondent Mohan Lal cannot be held entitled to relief of permanent injunction against the defendants/appellants. Thus, the findings of learned Lower Court on issue No. 1 are reversed and same is decided against the plaintiff/respondent Mohan Lal and in favour of defendants/appellants.

Feeling aggrieved from the aforesaid judgment and decree of the lower Appellate Court, plaintiff has filed the instant appeal submitting that following substantial questions of law arise in this appeal:-

i) Whether the findings of the Appellate Court are illegal, perverse and against the settled principles of law?

ii) Whether the plaintiff/appellant who is in peaceful and long undisturbed possession is entitled to decree of permanent injunction against the defendants?

iii) Whether peaceful long possession can be disturbed forcibly by anyone?

iv) Whether the findings of the Appellate Court are erroneous and against the facts, law and evidence adduced on record?

v) Whether the suit of plaintiff deserves to be decreed against the defendants who have no right in the property in dispute?

Learned counsel for the appellant has vehemently argued that the lower Appellate Court has erred in law while not appreciating the facts that appellant is in long standing possession over the suit land and has a right to protect his possession against any one except the true owner and respondents have no right to dispossess the plaintiff from the property in dispute except in due course of law.

I have heard learned counsel for the parties and perused the judgment and decree of the lower Appellate Court.

There is no dispute with the proposition of law as raised on behalf of the appellant. However, admittedly, appellant is not a proprietor of the village and the land in dispute is not in his possession. As per revenue record, the suit property is ownership of Panchayat Deh and Bashindgarh Deh is in cultivating possession. The plaintiff is not shown in possession over the suit property bearing khasra No. 107 which is Panchayat Deh. Plaintiff in order to prove his case has placed on record Ex. P1 only. From the aforesaid site plan, possession of the plaintiff over the disputed property cannot be established, whereas, as per revenue record, the suit property is ownership of Panchayat Deh and Bashindgarh Deh is in cultivating possession.

In the absence of any evidence on record and the fact that in revenue record, Bashindgah Deh is found in cultivating possession there is no reason to interfere in the impugned judgment and decree of the lower Appellate Court.

No substantial questions of law, as raised, arise in this appeal.

Dismissed.