Dismissed

Raghunath Dass v. Umawati and Ors.

Punjab & Haryana HC22 Feb 2012RSA/319/2010

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal. The court held that the first appellate court rightly found the appellant was not in possession of the property based on evidence, and no substantial question of law was raised to warrant interference under Section 100 CPC.

What did the court decide?

Second appeal dismissed; original decree set aside by lower appellate court is affirmed.

Raghunath Dass Vs Umawati and Ors. — Landlord and Tenant | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No. 319 of 2010 (O&M) Date of Decision: 22.2.2012.

Raghunath Dass

--Appellant

Versus

Umawati and others

--Respondents

CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.

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Present:Mr. Pankaj Sharma, Advocate for the appellant.

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TEJINDER SINGH DHINDSA.J

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The suit filed by the plaintiff-appellant for permanent injunction was decreed by the Trial Court in his favour. The Lower Appellate Court in a civil appeal, filed by the defendants has accepted the appeal and set aside the judgement and decree passed by the Trial Court. The plaintiff-appellant is now in second appeal impugning the judgement and decree dated 1.10.2008 passed by the Additional District Judge, Ropar.

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Briefly noticed, the plaintiff-appellant filed a suit for permanent injunction against the defendants in terms of pleadings that he is the owner in possession of the residential plot as described in the head note of the plaint. The defendants had no concern, right or title to such plot. The plaintiff-appellant had earlier filed a suit for permanent injunction restraining the defendants from forcibly and illegally raising construction and dispossessing him from the plot in question. In an application under Order 39 Rule 1 C.P.C filed in the earlier suit, the status quo order was granted on 5.6.1997. Inspite of the same, the defendants had taken forcible possession of the suit property in terms of raising a wall, a shed and placing a Toka Machine during the pendency of the earlier suit. It is under such

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RSA No. 319 of 2010 (O&M)

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circumstances that the plaintiff-appellant claimed that he is entitled for restoration of possession as owner by way of demolishing the illegal construction raised by the defendants and hence the suit.

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Upon notice the defendants contested the suit in terms of filing a joint written statement stating that the plaintiff-appellant is neither owner nor in possession of the suit property. The suit property was stated to be owned and possessed by the defendants for more than 30 years upon which construction in the nature of a cattle shed, boundary wall had been raised. The defendants pleaded that since their possession over the suit property was continuous, open and hostile as also to the notice and knowledge of everyone including the plaintiff-appellant as such the defendants have acquired title of ownership by way of adverse possession. It was specifically pleaded that the plea of title by way of adverse possession was being taken in the alternative without prejudice to the primary relief of ownership. Accordingly, prayer had been made for dismissal of the suit filed by the plaintiff-appellant.

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Parties went to trial on the following issues framed by the Trial

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Court:-

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“1. Whether the plaintiff is owner in possession of the residential plot as fully detailed in the head note of the plaint?OPP.

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1.(a) If issue no.1 is proved whether the plaintiff is entitled for possession of the suit land in the alternative as owner?OPP.

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If issue no.1 is proved whether the plaintiff is entitled for permanent injunction as prayed for?OPP.

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Whether the suit of the plaintiff is not maintainable in the present form?OPD.

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

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RSA No. 319 of 2010 (O&M)

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Whether the plaintiff is stopped to file the present suit?OPD.

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Whether the suit of the plaintiff is time barred?OPD.

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Whether the suit of the plaintiff is bad on account of nonjoinder of necessary parties?OPD.

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Relief.”

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The Trial Court having heard respective counsel and scanned the evidence led on record, decreed the suit in favour of the plaintiffappellant for the relief of permanent injunction and for possession as regards the suit property. The reasoning adopted by the Trial Court was that once the defendants take the plea of adverse possession, it would mean that there has been an admission as regards the plaintiff-appellant to be the owner of the suit property. That apart, the testimony of PW-1 Amrit Lal was placed reliance upon as regards the plaintiff-appellant being in possession of the suit property.

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The defendants preferred a civil appeal and vide impugned judgement dated 1.10.2008 passed by the Additional District Judge, Ropar the judgement and decree of the Trial Court dated 10.12.1999 has been set aside and the appeal has been accepted.

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I have heard Mr. Pankaj Sharma, learned counsel appearing for the plaintiff-appellant at length.

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Learned counsel would primarily submit that the respondents having taken a plea of adverse possession over the suit property, the ownership in the hands of the plaintiff-appellant stood admitted. It was argued that the findings by the Lower Appellate Court are erroneous and the well reasoned findings of the Trial Court have been wrongly reversed.

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RSA No. 319 of 2010 (O&M)

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It was the plaintiff-appellant's suit claiming the relief of permanent injunction. It was the plaintiff-appellant, who had to prove his case by leading cogent and relevant evidence as regards possession of the suit property so as to stand on his own legs to claim the discretionary relief of permanent injunction. Apart from the plaintiff-appellant himself, it was only the testimony of PW-1 that had been tendered as regards possession of the plaintiff-appellant is concerned over the suit property. However, the First Appellate Court has noticed that PW-1 himself conceded that he does not even belong to the village, where the suit property is situated and also admitted that he is a relative of the plaintiff-appellant. PW-1 as such had been held to be an interested witness. For proving possession no independent corroboration in terms of any witness from the village concerned was produced. The Trial Court clearly fell in error by granting the relief of permanent injunction on the ground that the defendants had raised a plea of adverse possession over the suit property.

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It is upon due appreciation of evidence led on record that a finding of fact as regards the plaintiff-appellant not being in possession of the suit property has been returned by the First Appellate Court. Such finding is binding on High Court in exercise of jurisdiction under Section 100 of the Code of Civil Procedure. I do not find any perversity in the conclusions and findings of the First Appellate Court.

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The present second appeal must fail as it does not raise any question of law much less substantial question of law. Appeal dismissed.

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(TEJINDER SINGH DHINDSA) JUDGE

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22.2.2012. lucky

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Whether to be reported? No.

Raghunath Dass v. Umawati and Ors.

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Raghunath Dass v. Umawati and Ors.

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