In this second appeal, the appellant challenged eviction notices alleging unauthorized occupation of an area exceeding their purchased plots. The court held that factual disputes regarding possession and property measurement cannot be resolved in a second appeal and no legal question arose.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A.No.1217 of 2007 (O&M)
Date of decision : 15.2.2010
Dalbir Singh and others
....Appellants
Versus
State of Haryana and others
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present : Mr.N.R.Dahiya Advocate for the appellants.
Mr.P.S.Sullar, DAG, Haryana for the respondent.
MAHESH GROVER, J.
It has been argued by the learned counsel for the appellants that the appellants are in possession of the suit property and that the notices which were issued by respondent No.1 were null and void. The notices were issued seeking eviction of the appellants from the area which according to the respondents is in unauthorised occupation of the appellants. The appellants, however, pleaded that it was the area that they had purchased. Along with the plaint a site plan had also been attached. The findings of the courts below are that the appellants had a right only qua plots No.289 and 290 and the sale deed which was produced by them on record shows their possession over the said plots. The area of plot No.289 is 1230 sq. feet while the area of plot No.290 is 406 sq. ft. but as a matter of fact the appellants
R.S.A.No.1217 of 2007 (O&M) -2-
were found in possession of 4219 sq. ft. On an earlier occasion when there was a litigation between Azad Singh, who is predecessor-ininterest of the present appellants and one Jagdish, who had been arrayed as respondent No.3, the possession of the appellants was admitted by said Jagdish and decree was passed regarding declaration that Azad Singh is owner in possession of these plots. There is thus no dispute regarding the ownership and possession of these plots. However, the appellants claim possession of more area regarding which notices had been issued. The notices were qua property which has been described as ND1 and ND2. During the course of proceedings this court had appointed a Local Commissioner who had gone to effect the demarcation and as per the demarcation report the property of ND2 was shown distinct from the property of plots No.289 and 290 and the total area of two plots as 182 sq. yards (52'x31'6”). Counsel for the appellant had questioned that the property in dispute could not have been declared as an evacuee property and that the respondents have no concern with it. A perusal of the pleadings, however, shows that no such plea was ever raised by him in the plaint. Even when the objection was taken by the respondents that the property is an evacuee property, there was no denial in the replication and there was a mere reiteration of the facts as pleaded in the plaint. Learned counsel for the appellants has stated that the property could not have been declared as an evacuee property as the same is barred by limitation. A perusal of the pleadings shows that no such plea was ever raised by the appellants and in view of the aforesaid the appellants are clearly precluded from raising such a plea
R.S.A.No.1217 of 2007 (O&M) -3-
before this Court at this stage. The question of fact regarding identity and measurement of the property has been established by the courts below. It has also been found as a matter of fact that the appellants are in unauthorised possession of the area which was in excess of the area purchased by them. These are pure questions of facts which cannot be determined in a regular second appeal.
No question of law arises for the consideration of this
Court.
Dismissed.
15.2.2010 (MAHESH GROVER) JUDGE
dss
3 issues framed by the court
Whether questions of fact regarding identity and measurement of property and unauthorized possession can be determined in a regular second appeal.
Whether the appellants are precluded from raising pleas regarding evacuee property or limitation as not raised in the plaint or replication.
Whether any question of law arises for consideration in this second appeal.
Dalbir Singh and others
State of Haryana and others
Mahesh Grover
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
