Rajinder Singh Johar vs Improvement Trust

L.N. Mittal, J.—Plaintiff-Rajinder Singh Johar has come in Second Appeal, having remained unsuccessful in both the Courts below.

Plaintiff filed suit against Improvement Trust, Patiala alleging that plaintiff is absolute owner of suit land measuring six biswas, having purchased from Smt. Harbhajan Kaur wife of Teja Singh, vide sale deed dated 24.03.1981. In the alternative, the plaintiff alleged that he has became owner of the suit land by adverse possession, being in possession thereof since 24.03.1981. The defendant made road in part of the suit plot but still the plaintiff is in possession of the said land. The plaintiff accordingly sought declaration that he is sole and absolute owner of the suit land or alternatively he has become its owner by adverse possession. The plaintiff also sought mandatory injunction directing the respondent-defendant to remove the road made on part of the plot or in the alternative, possession of the said plot be granted. Permanent injunction restraining the defendant from interfering in the possession of the plaintiff was also claimed.

The defendant inter alia pleaded that Improvement Trust, Patiala, framed a scheme covering suit land as well. For the said scheme, the land was acquired vide award dated 28.7.1978. The suit land is included in the acquired land. Harbhajan Kaur, from whom the plaintiff purchased the plot, went and failed upto the Hon''ble Supreme Court. After decision of Supreme Court, defendant took possession of the suit property vide warrant of possession dated 10.04.1992. The suit property vests in the Improvement Trust, Patiala free from all encumbrances. Various other pleas were also raised.

Learned Civil Judge (Jr. Division), Patiala vide judgment and decree dated 29.11.2006, dismissed the plaintiff''s suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 31.01.2009. Feeling aggrieved the plaintiff has preferred the instant second appeal.

I have heard counsel for the parties and perused the case file including trial court file.

There is award of Land Acquisition Collector dated 28.07.1978, Exhibit D2, whereby suit land was acquired for defendant-Improvement Trust for scheme framed by it. The plaintiff purchased the suit land from Smt. Harbhajan Kaur vide sale deed dated 24.03.1981 Ex.P1, almost three years after the land had already been acquired. Consequently, it cannot be said that the plaintiff has become owner of the suit land.

The plaintiff had also filed CWP No. 4011 of 1995 against the State of Punjab and Ors. including Improvement Trust, Patiala. The plaintiff claimed writ of mandamus directing the respondents to exempt the plaintiff''s house in suit from the acquisition or in alternative, for allotment of other plot. The said writ petition was dismissed by Division Bench of this Court vide order dated 31.08.1995 Thus, plaintiff''s plea was negatived in the said writ petition and the instant suit was filed thereafter on 12.03.1997. In view of dismissal of the writ petition, the plaintiff could not approach the Court again by way of instant suit. The plaintiff in the plaint even concealed the fact of having filing the aforesaid writ petition. Learned Counsel for the appellant contended that the said writ petition was filed to claim alternative plot. However the contention is untenable because order passed in the writ petition reveals that the plaintiff claimed exemption of his house in question from the scheme and in the alternative, the plaintiff claimed allotment of some other plot. Moreover, the filing of the aforesaid writ petition implied that the suit land was acquired by defendant-Trust and plaintiff challenged the same and claimed exemption of the suit property from the scheme of the defendant, but the writ petition was dismissed by this Court.

Learned Counsel for the appellant contended that possession of the land has not been taken by the defendant as admitted by Balbir Singh DW-1 and therefore the suit land has not vested in the Improvement Trust. Reliance in support of the aforesaid contention has been placed on a Division Bench judgment of this Court in the case of Jaipal Singh and Ors. v. State of Haryana and Anr. 1981 PLJ 392. The aforesaid contention also cannot be accepted. Both the Courts below on proper appreciation of evidence have come to concurrent finding that Improvement Trust is in possession of the suit land. The said finding cannot be said to be perverse or illegal.

Learned Counsel for appellant contended that compensation has also not been given to Smt. Harbhajan Kaur or her husband as her attorney and for this reason also, the suit land has not vested in the defendant-Improvement Trust. This contention also has no merit because it has been observed in order dated 31.08.1995, whereby CWP No. 4011 of 1995 filed by the plaintiff was dismissed, that compensation was offered to Smt. Harbhajan Kaur or her husband. Consequently aforesaid contention raised by the plaintiff cannot be accepted.

For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed in limine.