In a second appeal against a suit for permanent injunction, this court observed that the plaintiffs failed to prove possession over the disputed site. It also held the suit improper due to non-joinder of the Mandir Committee and dismissed the appeal in limine.
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R. S. A. No. 4781 of 2010 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 4781 of 2010 (O&M)
Date of Decision : January 24, 2011
Mohan Lal Sondhi and another
.... Appellants
Vs.
Surinder Parbhakar and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
Present : Mr. D. K. Bhatti, Advocate for the appellants.
L. N. MITTAL, J. (Oral) :
C. M. No. 14186-C of 2010 :
Allowed as prayed for.
Main Appeal :
Plaintiff Mohan Lal Sondhi and Madan Lal Sondhi were partly successful in the trial court, but have been completely non-suited by the lower appellate court. Hence, they have filed the instant second appeal. The plaintiffs alleged that they are in possession of the suit property measuring 02 kanals 08 marlas out of the land of different khasra numbers mentioned in the plaint. The suit land has been depicted in red colour in site
R. S. A. No. 4781 of 2010 (O&M)
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plan attached to the plaint. Defendants have no right, title or interest in the suit land. Plaintiffs are the only legal heirs of their father Sadhu Ram Sondhi, who was owner in possession of the suit land. However, defendants threatened to interfere in the possession of the plaintiffs over the suit land and threatened to take forcible possession thereof. Accordingly, the plaintiffs sought permanent injunction restraining the defendants from interfering in possession of the plaintiffs over the suit land and from raising any construction in the suit land.
Defendant no.1 inter alia pleaded that site plan filed by the plaintiffs in not correct. There is property of defendant no.1 on the South of property of Santi and Banti abutting Kapurthala Road. Defendant no.1 has raised construction there after obtaining the site from Sidh Baba Balak Nath Mandir Committee (in short – the Mandir Committee). Defendant no.1 is in possession of khasra no.11401, which extends up to Coal Depot. Said khasra number is not subject matter of the suit. Site depicted in red colour of the plan does not exist on the spot as part of any khasra number claimed by the plaintiffs. Defendant no.1 has installed machinery in the property in his possession as tenant under the Mandir Committee and was earlier running his business of building material there for about 20 years. Plaint allegations were broadly controverted. Defendants no.2 and 3 specifically pleaded in the written statement that site plan filed by the plaintiff is wrong
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and area shown in red colour in the plan does not fall in any khasra number mentioned in the plaint. Area towards South of the property of Santi and Banti is not vacant site. There are shops of defendant no.1 in the said area. Defendant no.1 is tenant under the Mandir Committee. Towards South thereof is khasra no.11401 used as burial ground for infants. The area extends up to Coal Depot. Plaintiffs have no concern with the said land. Suit has been wrongly filed against defendants no.2 and 3 in their individual capacity, whereas defendants no.2 and 3 are President and General Secretary respectively of the Mandir committee, which is a registered society. Said Committee is in management and control of the aforesaid burial ground comprised of khasra no.11401. Towards North thereof, there are shops of defendant no.1 in khasra no.11403. Plaintiffs have nothing to do with the property lying between property of Santi and Banti on the one hand and Coal Depot on the other hand. The said entire property is in possession and management of Mandir Committee. It does not comprise of khasra numbers mentioned in the plaint.
Defendant no.4 pleaded that he never claimed any right in land of khasra numbers mentioned in the plaint. He is in possession of adjoining site being managed by the Mandir Committee. Various other pleas were also raised.
Learned Civil Judge (Junior Division), Jalandhdar, vide
R. S. A. No. 4781 of 2010 (O&M)
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judgment and decree dated 20.12.2006, partly decreed the suit restraining the defendants from raising any construction forcibly or illegally over the suit land, except in due course of law. However, first appeal preferred by defendant no.3 Surinder Prabhakar has been allowed by learned Additional District Judge, Jalandhar, vide judgment and decree dated 10.08.2010 and thereby, suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiffs have filed instant second appeal.
I have heard learned counsel for the appellants and perused the
case file.
Learned counsel for the appellants vehemently contended that defendant no.3, in the witness-box, admitted that he has no concern with the suit land, except land of khasra nos.11401 to 11403. It was pointed out that defendant no.3 even admitted that Mandir Committee had no concern with the khasra numbers in question and he was not aware if plaintiffs are in possession thereof. From these admissions, learned counsel for the appellants wanted to draw the inference that plaintiffs' possession over the suit land has been admitted by defendant no.3 in the witness-box. I cannot accept this contention of learned counsel for the appellants, which is completely misconceived. In the written statement, all the defendants specifically took the objection that disputed site depicted in the site plan by the plaintiffs is not part of khasra numbers mentioned by the plaintiffs in the
R. S. A. No. 4781 of 2010 (O&M)
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plaint. In spite of that objection, the plaintiffs did not seek demarcation of their land of said khasra numbers to depict that disputed site is comprised of said khasra numbers. It is thus manifest that there is practically no evidence that disputed site is part of said khasra numbers or is in possession of plaintiffs. Admission of defendant no.3 is being misread by the plaintiffs because defendant no.3 admitted that Mandir Committee had no concern with the khasra numbers pleaded by the plaintiffs, but defendant no.3 did not admit at all that disputed site is part of said khasra numbers. On the contrary, there are shops of Mandir Committee, which are in possession of defendant no.1, in the property towards South of property of Santi and Banti. The disputed site lies between property of Santi and Banti on the one hand and Coal Depot on the other hand. Defendants' specific case is that the said land is not part of khasra numbers pleaded by the plaintiffs. The said version of the defendants has not been rebutted by the plaintiffs. In order to succeed, the plaintiffs have to prove that the disputed site is part of khasra numbers claimed by them. However, plaintiffs have miserably failed to do so. Consequently, the plaintiffs have been rightly non-suited by the lower appellate court. It is significant to notice that all the defendants specifically pleaded the property in question to be in possession and management of Mandir Committee, but in spite thereof, Mandir Committee was not impleaded as party to the suit. Contention of counsel for the
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appellants that rights of the plaintiffs-appellants were being threatened by the defendants and therefore, suit was filed against them, cannot be accepted because defendant no.3 is mentioned as `Prabhakar Secretary' in the plaint.
Even his name has not been mentioned. He has been impleaded as Secretary of Mandir Committee. It is thus apparent that defendant no.3 was sued in his capacity as Secretary of Mandir Committee, without impleading the Mandir Committee as party in the suit, although defendant no.3 was acting on behalf of Mandir Committee, even according to plaintiffs' own version. The suit is thus also bad for non-joinder of necessary party i.e. Mandir Committee.
In view of the aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine.
( L. N. MITTAL ) JUDGE
January 24, 2011
monika
2 issues framed by the court
Whether the plaintiffs-appellants proved that the disputed site forms part of the khasra numbers claimed in the plaint.
Whether the suit was properly instituted in light of the non-joinder of the Mandir Committee as a necessary party.
Mohan Lal Sondhi
Madan Lal Sondhi
Surinder Parbhakar
Sidh Baba Balak Nath Mandir Committee
L. N. Mittal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
