Second appeal by defendants claiming ownership against decree for possession in favour of plaintiff who purchased property in auction. High Court upheld lower courts' finding that appellants encroached on respondent's property and dismissed appeal.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 1623 of 1989(O&M) Date of Decision: 1.2.2012.
Dalip Singh & others
--Appellants
Versus
Hans Raj & another
--Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. Jagdish Manchanda, Advocate for the appellants.
Mr. A.K. Ahluwalia, Advocate for the respondents.
TEJINDER SINGH DHINDSA.J
The defendants-appellants are in second appeal before this
Court.
Hans Raj, plaintiff filed a suit for a decree for possession of property no.B-VIII-18 measuring 329 sq. yards situated at Meham being fully detailed in the site plan attached with the plaint. It was pleaded that property no.B-VIII-18 measuring 329 sq. yards was put to auction on 5.6.1979 and the plaintiff being the highest bidder of Rs.1250/-, the bid was confirmed in his favour on 28.6.1979. As provided under the Displaced Persons Compensation Rules a conveyance deed was also issued to the plaintiff on 1.6.1982 and the same was registered on 8.9.1982. It was further pleaded that the property purchased by the plaintiff consisted of a room on the Northern side as also a room on the Southern side. The defendants forcefully and illegally entered the property and demolished the room on the Southern side which was adjacent to a Gali. It was stated that such portion now stood occupied by Sadhu Ram, defendant no.2 and such defendant had also constructed a room with the malba of the demolished
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room and kitchen as reflected in the red colour in the site plan. Defendant no.4 was stated to be in possession of a room and kitchen and defendant no.3 was stated to be in possession of the original existing room on the Northern side of the property. It was pleaded that the plaintiff had on a number of occasions objected to the illegal occupation of his property at the hands of the defendants. However, since the defendants had failed to deliver the possession of the suit property to the plaintiff as such the decree for possession had been prayed for.
The defendants upon notice contested the suit and filed separate written statements. Defendants no.1 and 2 denied that the suit property had even been auctioned by the Custodian Department. It was pleaded that the property no.B-VIII-19 had been put to auction by the Custodian Department in the year 1958 and the same had been purchased by Matu Ram i.e. the father of defendants no.1 and 2 in an open auction. A sale certificate had also been issued in respect thereof. Defendants no.3 and 4 also denied the averments made in the plaint and claimed that they are in possession of the suit property as owners. Defendants no.3 and 4 asserted that they had raised construction over the property more than 25 years back and upon such pleadings it was prayed that the suit be dismissed.
From the pleadings of the parties, following issues were
struck:-
RSA No. 1623 of 1989(O&M)
-3-
the plan are factually wrong as alleged and if so to what effect?OPD3-4.
The suit of the plaintiff was decreed by the Trial Court as
regards possession of property bearing no.B-VIII-18 measuring 329 sq. yards situated at Meham. Defendants-appellants preferred a civil appeal and vide judgement dated 16.1.1989 the judgement of the Trial Court has been upheld and the appeal has been dismissed. Resultantly, the defendants-appellants are in second appeal before this Court.
I have heard respective counsel for the parties and have perused the case file minutely.
The courts below have conclusively held that the defendantsappellants have no concern whatsoever with the suit property bearing no.BVIII-18 which has been proved to have been purchased in public auction by the plaintiffs-respondents from the Custodian Department. Such fact stands
RSA No. 1623 of 1989(O&M)
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proved from the sale certificate Ex.P-1. On the other hand the conveyance deed Ex.D-1 issued on 17.7.1958 reflected the sale of property no.B-VIII-19 in favour of Matu Ram. Sale certificate Ex.D1/1 issued on 1.10.1958 would reflect the sale of property bearing no.B-VIII-20 in favour of Mai Dal i.e. father of defendants no.3 and 4. The findings on fact that have been returned by both the courts below are that defendants no.1 and 2 are owners of property no.B-VIII-19 and defendants no.3 and 4 are owners of property no.B-VIII-20, whereas the plaintiff-respondent is the owner of property no.B-VIII-18. Site plan Ex.P-2 proved by Sh.Kewal Krishan, Kanungo would show property no.B-VIII-19 towards East of property no.B-VIII-18 and the dimension of property no.B-VIII-18 is shown as 81 feet 9 inches North-South and 23 feet 3 inches East-West. No evidence has been led to show that such site plan was not issued by the Custodian Department from its own record. The defendants-appellants also did not make any attempt to bring on record any other side plan from the record of the Custodian Department to show the respective locations of plots no.18, 19 and 20. Defendants no.1 and 2 themselves had stated that they were in possession of property no.19 and not in possession of property no.18. Likewise, defendants no.3 and 4 have stated to be in possession of property purchased vide sale certificate Ex.D1/1 and such property bears no.20. In the testimony of DW-4, Shishpal, there was a clear admission in the crossexamination that neither he nor his father had ever purchased property no.18. Based on the site plan Ex.P-5 both the courts below have held the defendants-appellants to have encroached upon property no.18 i.e. the one owned by plaintiff-respondent. On such cogent reasoning and due appreciation of evidence led on record the defendants-appellants have been
RSA No. 1623 of 1989(O&M) -5-
held to be in illegal possession of the property in dispute bearing no.18, which is under the ownership of the plaintiff-respondent.
I find no basis whatsoever to interfere with the impugned judgement and decree. The findings of the courts below are based on due appreciation of evidence and I do not find the same to be perverse.
No question of law much less substantial question of law arises for determination in this second appeal.
The appeal is, accordingly, dismissed.
Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
1.2.2012. lucky
2 issues framed by the court
Whether the findings that appellants are not owners of the suit property but are in illegal possession can be disturbed in a second appeal?
Whether substantial question of law arises to interfere with the decree for possession in favour of the respondent?
Dalip Singh & others
Hans Raj & another
Tejinder Singh Dhandha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
