Dismissed

Jiyu and Ors. v. State of Haryana and Ors.

Punjab & Haryana HC10 Feb 2012RSA/4952/2010

Case brief

AI extract

What is this about?

In a second appeal concerning a suit for permanent and mandatory injunction against encroachment of land for road construction, the High Court dismissed the appeal. It upheld the lower courts' finding that the claim for mandatory injunction was time-barred but affirmed the existing permanent injunction regarding possession.

What did the court decide?

Second appeal dismissed; existing permanent injunction against interference with possession affirmed; no new relief granted.

Jiyu and Ors. Vs State of Haryana and Ors. — Property and Title | Punjab & Haryana HC (2012)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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RSA No. 4952 of 2010(O&M) Date of Decision: 10.2.2012.

Jiyu & others

--Appellants

Versus

State of Haryana & others

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--Respondents

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

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Present:Mr. R.N. Lohan, Advocate for the appellants.

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TEJINDER SINGH DHINDSA.J

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The plaintiffs-appellants are in second appeal before this Court. Briefly noticed, the plaintiffs-appellants filed a suit for permanent and mandatory injunction against the State of Haryana by pleading that the suit land measuring 75 kanals 19 marlas situated at village Bhaini Bhairon, Tehsil Meham, District Rohtak is owned by them. It was pleaded that the defendant-State at the time of constructing a road towards the Northern side of the suit land has encroached on some area of the suit land. The plaintiff-appellant had got a report from the Office Kanungo, who had upon visiting the spot and having demarcated the same, reported that some portion of the suit land had been encroached upon and included in the road. It was pleaded that no part of the suit land had ever been acquired by the State and no compensation thereof had ever been paid to them. Despite repeated requests to remove the encroachment and to restore the suit property nothing had been done and now the State is threatening to encroach upon certain more land, accordingly, the suit had been instituted. The defendant-State filed a written statement raising a preliminary objection regarding the maintainability of the civil suit. The assertion as regards

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RSA No. 4952 of 2010(O&M)

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-2-

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encroachment upon any part of the suit land in terms of construction of the road was denied. It was stated that the report of the Kanungo had been procured in collusion with the plaintiff-appellant.

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Upon the pleadings of the parties, following two crucial issues were framed by the Trial Court:-

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“1. Whether the plaintiff is entitled for relief of permanent injunction restraining the defendants from encroaching upon any further part or portion of the suit land as alleged?OPP.

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Whether the plaintiff is entitled for permanent injunction restraining the defendants from interfering into their possession?OPP.”

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Upon having heard the parties and having scanned the evidence brought on record, the suit of the plaintiffs-appellants was partly decreed to the extent of grant of relief of permanent injunction restraining the defendant-State from interfering in the possession of the plaintiffsappellants' property except in due course of law. The relief of mandatory injunction was declined. The plaintiffs-appellants preferred a civil appeal and vide impugned judgement dated 6.8.2010 passed by the Additional District Judge, Rohtak the findings of the Trial Court were affirmed and the appeal stands dismissed. Resultantly, the plaintiffs-appellants are in second appeal before this Court.

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I have heard Mr. R.N. Lohan, learned counsel appearing for the plaintiffs-appellants at length.

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It was the entire case of the plaintiffs-appellants in terms of placing reliance on demarcation report Ex.P-3 and site plan Ex.P-4 to contend that the defendant-respondent State has encroached upon 2 marlas of land pertaining to the suit land and a road thereon has been constructed. Accordingly, a case has been set up that there has been encroachment in as

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RSA No. 4952 of 2010(O&M) -3-

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much as without having resorted to the process of acquisition and without granting any compensation in lieu thereof, a portion of the suit land has been utilized for purpose of construction of the road.

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However, both the courts below have recorded a concurrent finding of fact that the road in question was constructed more than 30 years back. Such fact was admitted in the testimony of the plaintiffs-appellants. They had admitted the version of the respondent-State that the road in question which had been encroached upon the suit property had been constructed a long time back. The fact that such road was located adjacent to the fields of the plaintiffs-appellants would in itself show that he was aware all through of any encroachment, if, at all as alleged by him. Accordingly, the courts below have held the plaintiffs-appellants not to be entitled for the relief of mandatory injunction being time barred. As regards the apprehension of the plaintiffs-appellants regarding further encroachment at the hands of the State, their right stands protected as the relief of permanent injunction in terms of restraining the defendantrespondent State from interfering in the possession of the suit property except in due course of law, has already been granted to them by the Trial Court and the same stands affirmed by the impugned judgement dated 6.8.2010 passed by the Additional District Judge, Rohtak.

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I do not find any ground that would warrant interference with the impugned judgements and decree of the courts below. As regards the State Govt. acquiring any property without paying compensation to a citizen in lieu thereof, it would be open for the plaintiff-appellant to pursue the appropriate remedy in accordance with law.

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RSA No. 4952 of 2010(O&M)

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-4-

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No question of law much less substantial question of law arises

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for determination in the present second appeal.

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For the reasons recorded above, the present second appeal is,

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accordingly, dismissed.

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Appeal dismissed.

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(TEJINDER SINGH DHINDSA) JUDGE

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10.2.2012. lucky

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Whether to be reported? No.

Jiyu and Ors. v. State of Haryana and Ors.

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Jiyu and Ors. v. State of Haryana and Ors.

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