Dismissed

Amar Singh v. Neeraj Kumar and Ors.

Punjab & Haryana HC25 Feb 2014RSA/2380/2011

Case brief

AI extract

What is this about?

This Court dismissed two second appeals (RSA Nos. 2380 and 1726 of 2011) and a contempt petition (COCP No. 2507 of 2011). Upholding concurrent findings of lower courts and a local commissioner's report, the Court held plaintiffs were owners who were forcibly dispossessed. Appeals against the decree for possession and compensation failed; contempt petition was rejected for lack of evidence.

What did the court decide?

Appeals and contempt petition dismissed; no order as to costs.

Amar Singh Vs Neeraj Kumar and Ors. — Property and Title | Punjab & Haryana HC (2014)

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH

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RSA No. 2380 of 2011 (O&M) Date of Decision: 25.2.2014

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Amar Singh

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.....Appellant

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Versus Neeraj Kumar and others

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.....Respondents

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RSA No. 1726 of 2011 (O&M)

Gobind Ram

.....Appellant

Versus

Neeraj Kumar and others

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.....Respondents COCP No. 2507 of 2011

Amar Singh

.....Appellant

Versus

Ved Parkash and another

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.....Respondents

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. Ajay Jain, Advocate for the appellant.

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Mr. Arun Jain, Sr. Advocate with

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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Mr. B.S.Mittal, Advocate for the respondents.

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1. To be referred to the Reporters or not?

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2. Whether the judgment should be reported in the Digest?

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RAMESHWAR SINGH MALIK J.

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These two appeals bearing RSA No. 1726 of 2011 (Gobind Ram Vs. Neeraj Kumar and others) and RSA No. 2380 of 2011 (Amar Singh Vs. Neeraj Kumar and others) as well as COCP No. 2507 of 2011 (Amar Singh Vs. Ved Parkash and another), are being decided together, being connected and between the same parties, qua the same suit property. These were ordered to be heard together vide order dated 27.5.2013. However, for the facility of reference, facts are being culled from RSA No. 2380 of 2011.

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Defendant is in second appeal, against the concurrent findings of facts recorded by both the learned courts below, whereby suit for possession filed by the plaintiff was decreed by the learned trial court and the judgment was upheld by the learned Additional District Judge.

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In order to avoid repetition, facts of the case as recorded by the learned Additional District Judge in para 2 to 4 of the impugned judgment, read as under:-

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“ The relevant facts for the determination of

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the instant appeals are that one Saroj Rani wife of

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Bihari Lal Sachdeva, resident of Fazilka

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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(Firozepur), was owner in possession of 19 Marlas 7 Sarsai (71 ft. x 76 ft. i.e. 599.05 square yards) (for brevity, 'suit land') of land being 178/1737 shares of the land comprised in khewat NO.167 (now khewat No.222) square no.60, killa nos.8/2(7-0) and 13/1/2/ (2-13), total khewat measuring 9 kanals 13 marlas, situated within the limits of Municipal Council, Sirsa; and that by a sale-deed Ex.P20 dated 1.1.1990/2.1.1990, she, through her S.P.A. Yogesh Kumar, sold the suit land to plaintiffs No.1 to 3 in equal shares. They, on 19.3.2004, filed the suit in question against the defendants no.1 to 5, with the averments that their vendor had actual and physical possession of the suit land to them at the spot; that consequent to the said sale-deed, mutation no.4510, qua the suit land, was also sanctioned in their favour; that "after such purchase, they raised a boundary wall over the suit land and had also affixed an iron gate upon it; that they were in peaceful possession of the said land since its purchase by them; that one Subhash son of Mahavir was the owner of adjoining plot towards South measuring 30-1/2 ft. x 71 ft. and he had also laid down the foundation over his such plot; that the defendants no.1 to 5, had no concern or connection

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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with the suit land but they were known for occupying the properties of others, illegally and forcibly; that they had formed an unlawful group to achieve their such aim; that since they were the residents of Kalanwali, they received information on 16.3.2004 that the defendant no.1 and his associates and illegally demolished the southern wall of the suit land and had also removed its iron gate; that they were bent upon to raise illegal construction over the suit land; that upon receiving such information, the plaintiff no.2 came to Sirsa and found the said defendants no.1 to 4 present at the spot and also found that they had demolished the southern wall of the suit land and had also removed the southern foundation line of the adjoining plot of the above stated Subhash Chander; that they had also encroached upon a part of the street area and had started raising construction of a Kotha in the middle of the plot; that in fact, they were found surrounding an area of 114 ft. x 71 ft.; that upon an objection by the plaintiff no.2. he was threatened with dire consequences and the said defendants declared that the said plot belonged to them; that 3-4 persons, fully armed with guns, were found sitting on a cot in the plot;

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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that the said plaintiff informed the said facts to the police but no action was taken; that the said defendants, however on enquiry, did not give satisfactory reply qua their title over the said plot and also refused to show any title document in that regard; that the said defendants had no right to dispossess the plaintiffs no.1 to 3 illegally; that if they were owners of any area, they could recover possession of their plot in accordance with law; that by demolition of the said southern wall, the said defendants had caused a loss of at least Rs.10,000/- to the said plaintiffs ;that the suit land could fetch more than Rs.3000/- per month as rent and since the said plaintiffs had been illegally dispossessed, the said defendants were liable to pay Rs.2,000/- per month to the said plaintiff from the date of filing the suit till actual delivery of possession; that after such forcible possession, the said defendants wanted -to alienate the suit land despite they not being the owners thereof; and that they were requested to return the possession of the suit land but in vain. They prayed that a decree for possession of the suit land be passed in their favour with the consequential relief of permanent injunction

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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restraining the said defendants from raising further construction over the suit land and also from alienating it to any other person. Prayer for recovery of Rs.10,000/- as compensation for damage of the southern wall of the suit land was also made with a further prayer for recovery of compensation at the rate of Rs.2000/- per month for use and occupation of the suit land till the delivery of possession to them.

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Upon put to notice, the defendant no.1 to 5 appeared before the learned Civil Judge on 26.3.2004. The plaintiffs no. 1 to 3 had also filed an application for appointment of a Local Commissioner. Since, the learned counsel for the defendants no.1 to 5 had no objection for the appointment of a Local Commissioner, the said application was allowed. Miss Sangeeta Kataria, was appointed as a Local Commissioner with the direction to inspect the suit land and to report about its existing state of affairs etc.etc. She filed her report before the learned Civil Judge on 26.4.2004. On that very date, the plaintiffs no.1 to 3 filed an application under Order 1 Rule 10 of CPC for impleading the defendant no. 6 Amar Singh, as one

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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of the parties to the suit. On 3.5.2004, the learned counsel for the defendants no. 1 to 5 put his no objection on the said application and it was allowed. Accordingly, the defendant no.6 was impleaded as such defendant to the suit in question. On 26.5.2004, learned counsel. for the defendants no. 1 to 5 stated at Bar that no written statement was to be filed on their behalf.

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In his written statement filed on 11.8.2004, the defendant no.6, pleaded that by sale-deed Ex.D-1 bearing no. 2816 dated 27.6.2003, he had purchased 14-1/2 marlas of land being 29/3190 shares comprised in khewat/ Khatoni nos. 262/397 to 482, as per the jamabandi for the years 1995-96 from one Ranjet .Kaur widow of Karam Singh, Salender Singh alias Surender Singh son of Karam Singh and Smt. Kulwant Kaur, Jaswant Kaur daughters of Karam Singh son of Geja Singh; that on the basis of the said sale-deed, mutation Ex.D4 no. 4612 dated 14.1.2004 was entered and sanctioned in his favour; that prior to his said purchased, one Gobind Ram son of Kailash Chand son of Shri Hakam Chand, resident of Sirsa had purchased land measuring 1 Kanal 7 Marlas i.e.

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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27/193 shares of total land measuring 9 Kanals 13 Marlas .in Khewat/Khatoni No. 167/247 to 248 from the said Ranjeet Kaur widow of Shri Karam Singh son of Shri Geja Singh, by a registered 'sale deed No. 3017 dated 6.8.2001 and mutation Ex.D5 in respect thereof, had been entered and sanctioned in his favour at serial no. 4213 on 15.1.2002; that the said Gobind Ram had executed a G.P.A. no. 159 dated 3.6.2002 in his favour, duly registered in the office of Joint Sub Registrar, Sirsa and by dint of the said .G.P.A., he was authorised to act on behalf of the said Gobind Ram and to deal with the land in his ownership and possession; that in this way, he was in possession of 1 kanal 11 marlas of land 'and was residing therein with his other family members, for a long time; that the said plaintiff no.1 to 3 had nothing to do with the said land in his possession; that a dispute arose with him and his neighbours and he moved an application Ex.D3 for demarcation of the . land in his possession; that the Field Kanungo, Sirsa was appointed to demarcate the said land; that he inspected it and after such inspection, he prepared a demarcation report Ex.D2 dated 29.2.2004; that he submitted it to the 'concerned authorities; that he was found in

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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possession of the above stated 1 Kanal 11 marlas of land; that he had not encroached upon the alleged land, allegedly belonging to the plaintiffs no.1 to 3 and therefore, their suit deserved to be

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dismissed.”

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On completion of pleadings of the parties, learned trial court framed the following issues:-

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“1. Whether the plaintiffs are owners of the suit property and have raised a boundary wall?OPP.

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2. Whether defendant NO.6 is the owner of the land measuring 14 ½ marlas of land in khewat No. 167 as alleged?OPP

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3. Whether the defendants forcibly demolished the southern wall of the boundary of suit property and forcibly occupied it on 16.3.2004?OPP

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4. Whether the plaintiffs are entitled to compensation to the tune of Rs. 10,000/- for damage to the southern wall?OPP

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5. Whether the plaintiffs are entitled to compensation at the rate of Rs. 2000/- per month for illegal occupation by the defendants?OPP

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Whether court fee has not been affixed by the plaintiffs?OPD

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Relief”

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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In order to prove their respective stands taken, both the parties led their evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiffs have duly proved their case for possession. Accordingly, suit was partly decreed vide impugned judgment and decree dated 6.11.2009. Feeling aggrieved, one appeal bearing civil appeal No. 221-CA of 2009 was filed by the appellant-defendant Amar Singh. Second civil appeal No. 222-CA of 2009 was filed by Ved Parkash and others-plaintiffs whereas third appeal i.e. Civil appeal No. 121-CA of 2009 was filed by Gobind Ram. All the three appeals were decided together vide impugned judgment and decree dated 16.12.2010. Appeal filed by Amar Singh as well as appeal filed by Gobind Ram was dismissed, whereas third appeal filed by the plaintiffs was partly allowed. Hence these two separate appeals filed by Amar Singh and Gobind Ram. During pendency of the appeals, Amar Singh-appellant also filed COCP No. 2507 of 2011, alleging the violation of order dated 26.5.2011 passed by this Court.

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Learned counsel for the appellants submits that both the learned courts below have completely misread, misconstrued and misinterpreted the true facts of the case as well as evidence availble on record. He further submits that since the courts below have failed to appreciate the true facts of the case and also evidence available in the correct perspective, impugned judgments and decrees were not sustainable in law. He would next contend that since the respondents Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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have violated the order dated 26.5.2011 passed by this Court, they were liable to be punished, in accordance with law. Finally, he prays for setting aside the impugned judgment and decree, by allowing these appeals.

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On the other hand, learned senior counsel for the respondents submits that appellants have no case either on facts or in law. Both the learned courts below have recorded concurrent findings of facts, leaving no room for interference at the hands of this Court. He also submits that since there was no substantial question of law involved in these cases, both these appeals were liable to be dismissed.

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Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the case, no interference is warranted at the hands of the Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). To say so, reasons are more than one, which are being recorded hereinafter.

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It is a matter of record that since there was serious dispute between the parties about the location, identity and measurement of the suit property at the site, learned trial court rightly appointed the Local Commissioner vide order dated 26.3.2004 to inspect the existing site of the suit property, probable age of construction and boundary walls alongwith photographs. Learned local commissioner Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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submitted his report vide Ex.P24 and it was duly proved on record. It was also a matter of record that defendants did not file any objection to the report of the local commissioner. Once, the factual position at the site qua all the abovesaid aspects was ascertained by the local commissioner in his self contained report and the said report gone unrebutted on record, learned courts bleow were fully justified on facts as well as in law, while passing their respective impugned judgments and decrees and the same deserve to be upheld.

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Before arriving at a judicious conclusion, cogent findings were recorded by the learned Additional District Judge and the same read as under:-

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“The said report is self speaking . I may also mention that the defendants did •not file objections to the said report. From the said discussion, it has been proved that prior to 29.2.2004, the plot measuring 14-1/2 marlas purchased by the defendant No.6 in khewat 'No.262, did not have a boundary wall; that thereafter and as stated by the plaintiffs, on 16.3.2004, the defendants demolished the southern wall of the suit land and included it into a bigger plot thereby combining the suit land with the above stated 14-1/2 marlas of land belonging to the defendant No.6. The demarcation report dated

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Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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19.11.2007, also gives such inference because the suit land and the land measuring 14-1/2 •marlas

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belonging to the defendant No.6 is situated adjacently. By the said report, he was found in possession of the suit land also. The oral evidence adduced by the plaintiffs also proves their case. Hence, the evidence on the record has proved that the plaintiffs are the owners of the suit land and had raised the boundary wall over it; that the defendants forcibly demolished the southern wall of the suit land and occupied it on 16.3.2004; that the land measuring 14-1/2 marlas purchased by the defendant No.6 is situated in a different khewat. Having said so, let us see. Whether the defendants could demolish the said wall and forcibly occupy the suit land. In that regard, .1 may state that in Bhartu Vs. Ram Sarup's case (supra), it was authoritatively laid down that if a co-owner is in possession of a separate parcel, it is not open to anybody in disturb his possession except by filing a suit for partition. The said judgment was based upon the law declared in the report Sant Ram Nagine RamVs. Daya Ram Nagina Ram AIR 1961 Pb. 528. The principles laid down in the said report have thereafter been reiterated and approved in

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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the report in Ram Chander's case (supra). Hence the defendants were not authorized to disturb the possession of the plaintiffs over the suit land. The arguments raised on behalf of the defendants no. 6 that the order canceling mutation in favour of appellant Gobind Ram, was set aside by the learned Commissioner vide orderEx.D6, for the above stated discussion, can be of no help to the said defendant. Further, by the said order, the matter has simply been remanded for fresh decision. The arguments of Shri Sharma, therefore, are rejected and the judgment cited by him, rather support the case of the plaintiffs.

¶102

Coming to the appeal filed by the appellant Gobind Ram, I may state that in the written statement, the defendant No.6 had categorically pleaded that he was in possession of the suit land as the GPA of the appellant Gobind Ram. The defendant No.6 was contesting the suit in question throughout. Once, he was in possession of the suit land as the alleged GPA of the appellant Gobind Ram, the proceedings of the suit in question were well within the knowledge of he appellant Gobind Ram also. It appears that the GPA executed by him in favour of the defendant

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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No.6 was got cancelled with a pre-planned mind. Hence, unauthorised possession of the defendant No.6 over the suit land amounted to the unauthorised possession of the appellant Gobind Ram. Since his GPA had been impleaded as a party, he cannot be heard to say that he had no knowledge of the suit proceedings. A person who seeks equity and protection of principles of natural justice should approach the court with clean hands. However, the above stated discussion points a finger towards him. Rather, it appears that he has filed the appeal in question just to circumvent the impugned judgment and decree on the ground of violation of principles of natural justice. However, he was impleaded to the suit in question through his GPA who had claimed possession of the suit land, which has been held as unauthorised one. His claim, therefore, that he has been condemned unheard, is also rejected. The arguments raised by Shri Verma, therefore, cannot be accepted and the judgment cited by him, in support of his arguments, with utmost respects to the law laid down therein, is distinguishable to the facts and circumstances of the instant case.

¶107

Coming to the third appeal filed by the

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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plaintiffs, I may mention that once it was held under Issues No.1 and 3 that the plaintiffs were owners of the suit land and had raised a boundary wall upon it and further that the defendants had forcibly demolished its southern wall, where after they had forcibly occupied it on 16.3.2004, the plaintiffs were entitled to compensation for removal of the southern wall of the suit land. However, since it has come in the report Ex.P24 that the other walls of the suit land were made of mud, in the facts and circumstances of the instant case, I deem it appropriate to award the compensation/damages of Rs.5,000/- to the plaintiffs for such demolition . So far as the plea of the plaintiffs for delivery of area measuring 76 feet x71 feet instead of 66 feet x 71 feet is concerned, the persons, who are in possession of 10 feet x 71 feet of khewat No.167, are not the parties before me. To pass an order against them, is not warranted in the instant appeal. Hence, such prayer of the plaintiffs is rejected. Regarding, another plea of the plaintiffs that the compensation awarded by the learned civil Judge, as use and occupation charges of the suit land, is on lower side, I may mention that the learned Civil Judge

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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has applied a certain guess work to reach at the amount awarded . I do not deem it as unreasonable. Hence , the prayer of the . plaintiffs for enhancement of such amount is also rejected”

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A bare reading of the abovesaid cogent findings recorded by the learned Additional District Judge would show that neither the learned trial court nor the learned first appellate court committed any error of law, while passing their respective impugned judgments and decrees. Appellant-Amar Singh was claiming possession only as attorney of Gobind Ram. Even the said attorney was cancelled by Gobind vide Ex.P28 dated 20.8.2007. Thereafter, Amar Singh has no concern with the suit land. Any of the co-sharers could have sought possession from him. In this view of the mater, it is unhesitatingly held that the impugned judgments and decrees have not been found suffering from any infirmity and the same deserve to be upheld, for this reason also.

¶117

So far the contempt petition is concerned, learned counsel for the petitioner miserably failed to point out and substantiate as to how the order passed by this court was violated by the respondents.

¶118

During the course of hearing, learned counsel for the appellants failed to point out any patent illegality or perversity apparent on the record of the case, in either of the impugned judgments passed by the learned courts below. He also failed to put into service any substantiate argument, so as to convince this Court to take a different view than the one taken by the learned trial court Kumar Amit 2014.05.13 13:09 I attest to the accuracy and integrity of this document

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RSA No. 2380 of 2011 (O&M) RSA No. 1726 of 2011 (O&M) COCP No. 2507 of 2011

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as well as learned first appellate court. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC. In this view of the matter, it is unhesitatingly held that both the learned courts below committed no error of law, while the impugned judgments and the same deserve to be upheld.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the both these are appeals as well as contempt petition are misconceived, bereft of merit and without any substance, thus, these must fail. No case for interference has been made out.

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Resultantly, both these appeal as well as contempt petition stand dismissed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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25.2.2014 AK Sharma

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Amar Singh v. Neeraj Kumar and Ors.

Case brief

What is this about?

What did the court decide?

Amar Singh v. Neeraj Kumar and Ors.

Case brief

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