Dismissed

Nath Ram and Anr. v. Om Parkash and Ors.

Punjab & Haryana HC4 Mar 2014RSA/4420/2010

Case brief

AI extract

What is this about?

The High Court dismissed the appeal filed by defendants against the permanent injunction in their favor. Upholding concurrent findings of lower courts, the bench held no substantial question of law arose, particularly as the defendant failed to produce the Local Commissioner and admitted plaintiffs' possession, rendering the appeal misconceived.

What did the court decide?

Instant appeal stands dismissed, however, with no order as to costs.

Nath Ram and Anr. Vs Om Parkash and Ors. — Partition | Punjab & Haryana HC (2014)

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RSA No.4420 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.4420 of 2010 Date of Decision : 4.3.2014

Nath Ram and another

.....Appellants

Vs.

Om Parkash and others

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......Respondents

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CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present : Mr. K.S. Dadwal, Advocate for the appellants. Mr. C.L. Sharma, Advocate for the respondents.

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RAMESHWAR SINGH MALIK, J

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Feeling aggrieved against the impugned judgemens and decrees passed by both the learned courts below, decreeing the suit for permanent injunction, defendants have filed the present appeal.

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Brief facts of the case, as recorded by learned first appellate court, are that the plaintiffs/respondent nos.1 and 2 filed suit for permanent injunction, restraining the defendants from interfering in any manner or raising construction more than their share, in the suit property which is in peaceful possession of plaintiff as detailed in the head note of the plaint with the averments that the plaintiffs no.1 is in possession of the suit property to the extent of 1/5^th share who has inherited the same from his father Nandu and plaintiff no.2's share is to the extent of 2/5^th who has succeeded from Khema and Kirpa and defendant no.1 is recorded as 1/5^th share and gram panchayat is recorded as owner. The defendant no.3 has constructed his residential house

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and occupied already more than 1/5^th share. Plaintiffs have planted three Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.4420 of 2010

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mango trees, three eucalyptus trees and also got constructed one bath room and also dumped brick for the construction of their residential house in their share as shown within the letters ABCD in red colour in the site plan attached with plaint. The property in dispute has already been partitioned orally among the co-sharers. The defendants and other co-sharers have already raised construction in the area more than their share. The defendants being headstrong persons wanted to interfere into the peaceful possession of the plaintiff over the property shown in the site plan within letters ABCD which is vacant partition and has been kept for abadi purpose. Defendants No.1 and 2 have no right or title over the suit property in any manner because defendant no.3 father of defendant nos.1 and 2 has already constructed/covered are more than his entitlement but defendant no.1 being bank employee and defendant no.2 serving in the Indian Army are threatening the plaintiffs to encroach upon and raise construction in the peaceful possession of the plaintiffs and in case, defendants no.1 and 2 succeeded in their illegal act and designs and forcibly to encroach upon the suit land and to raise construction ovr the same, then plaintiff shall suffer an irreparable loss which cannot be compensated in any manner. It has been further submitted that the possession of the plaintiffs over the suit property is continued since from the time of their forefathers. Plaintiffs requested the defendants many a times to admit their lawful claim and not to interfere in the peaceful possession of the plaintiffs, but to no effect. Hence, the suit.

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Upon notice, the defendants appeared and filed written statement taking preliminary objections that the plaintiffs are neither owners nor in possession of any part of the suit land, so suit for injunction is not maintainable. The site plan filed by the plaintiffs is wrong which can be

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Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.4420 of 2010

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verified by appointment of local commissioner. The length of eastern side in between northern and southern of brick paved street is 33 karams instead of 26 karams and length of the house of Gian Chand is18 karams instead of 8 karams and southern line in possession of Chhajju Ram is 23 karams which is not at spot. There is a cattle shed, toka shed and two bath rooms and water pump, to place more than 8000 bricks and sand and bajri of defendants alongwith fruit bearing trees and other trees planted by the defendants i.e. mango, amla, amrood, shehtoot etc. are standing in the suit property since long. The suit property is in exclusive possession and use of answering defendants and their sons as their haveli. The plaintiffs have no right or interest in the suit property. The plaintiff has no locus standi to file the suit. On merits, all the facts as taken in the plaint are pacifistically denied. It is submitted that the plaintiff nos.1 and 2 have no right or title over the suit property. Plaintiff no.3 is not grand son of Chura. They have no concern with the suit property. In fact, the defendants are in possession of the entire suit property. Plaintiffs have nothing to do with the suit property. The alleged trees and other trees like amrood, amola, shehtoot, shresh etc. were planted and grown up by the defendants. Other allegations were also denied and the defendants prayed for the dismissal of the suit.

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

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“1. Whether the plaintiffs are 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 site plan filed by the plaintiffs is wrong ? OPD.

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Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.4420 of 2010

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Whether the plaintiffs have no locus standi to file the present suit ? OPD.

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Relief.”

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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, the learned trial court came to the conclusion that the plaintiffs have duly proved their case. Consequently, the suit was decreed vide impugned judgement and decree dated 23.2.2009, restraining the defendantsappellants from interfering in possession of the plaintiffs and also from raising any construction over the suit property. Defendants filed their first appeal, which also came to be dismissed by the learned Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur, vide impugned judgement and decree dated 19.5.2010 Hence, this appeal at the hands of the defendants.

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Learned counsel for the appellants submits that the learned courts below failed to appreciate the true facts and circumstances of the case in the correct perspective, because of which the impugned judgements and decrees were liable to be set aside. The evidence available on the record, particularly, the report of the Local Commissioner, Ex.D-2 was not properly appreciated by the learned courts below. Since both the learned courts below proceeded on factually incorrect and legally misconceived approach, while passing the impugned judgements and decrees, the same were not sustainable in law. In support of his contentions, learned counsel for the appellants places reliance on the following judgements :- Ram Niwas Vs. Jai Ram @ Tej Ram alias Tej Ram, 2000(3) RCR (Civil) 738, Kishan Singh Vs. Sucha Singh, 2008(2) RCR (Civil) 394. Finally, he prays for setting aside the impugned judgements

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and decrees, by allowing the present appeal.

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Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.4420 of 2010

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On the other hand, learned counsel for the respondents vehemently contended that both the learned courts below have recorded concurrent findings of facts. The report Ex.D-2 was rightly ignored because the same was not duly proved. The Local Commissioner did not appear in the witness box to prove his report. No question of law was involved. The impugned judgements were based on cogent evidence. He prays for dismissal of the appeal.

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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 view of the fact situation of the present case, no interference is warranted at the hands of this court, while exercising its appellate 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 none of the parties was the owner of the suit land. Ownership was that of the Gram Panchayat. Defendantappellant Nath Ram was in possession to the extent of 1/5^th share, whereas the plaintiffs were in possession to the extent of 3/5^th share of the suit land. This crucial aspect of the matter was admitted by defendant-Nath Ram himself. He also admitted that the plaintiffs have planted the trees. So far as the report of Local Commissioner Ex.D-2 was concerned, defendants did not produce the Local Commissioner in the witness box for the reasons best known to them. It also goes without saying that report of the Local Commissioner was not per-se admissible. No reason was forthcoming, as to why the defendants did not produce the Local Commissioner in the witness box. Having said that, this court feels no hesitation to conclude that the learned courts below committed no error of law, while passing their respective impugned judgements and

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Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.4420 of 2010

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decrees and the same deserve to be upheld.

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It was the specifically pleaded and duly proved case of the plaintiffs that they were owner to the extent of 3/5^th share in the suit land. Plaintiff no.1 was in possession to the extent of 1/5^th share and plaintiff no.2 was in possession to the extent of 2/5^th share, whereas defendant-appellant was in possession to the extent of 1/5^th share in the suit land. There was sufficient and cogent evidence produced by the plaintiffs to decree the suit. In fact, the present one was a case of oral evidence. In such a situation, the learned trial court was in an advantageous position to appreciate the demeanor of the witnesses appearing before it. The learned lower appellate court rightly appreciated the cogent findings recorded by the learned trial court giving due weight to them, because the same were based on oral evidence. In this view of the matter, it is unhesitatingly held that the learned courts below were fully justified in decreeing the suit of the plaintiffs and the impugned judgements and decrees deserve to be upheld, for this reason also.

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Before arriving at a judicious conclusion, learned lower appellate court recorded its own cogent findings. Some of the findings recorded in para 20 of the impugned judgement, read as under :-

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“ The testimony of these witnesses of defendant reveals

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that they have categorically admitted that the gram panchayat is the owner of the suit property the plaintiff is father, Nandu is recorded in possession of 1/5 share and possession of Khema and Kirpa is recorded as 2/5^th share and father defendant and the witnesses of the defendant have admitted that the present plaintiffs are in possession of the suit property to the extent of their share and further the

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Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.4420 of 2010

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perusal of the testimony of Chhajju Ram reveals that he has deposed that his son Gian Chand is in possession of the property and he has constructed a house therein in 6-7 marlas though his entitlement is for five marlas of land meaning thereby that he has already occupied more than his share and further the perusal of the testimony of these witnesses further reveals that they have never deposed that entries of the jamabandi and khasra girdwari are forged and fabricated upon which they have also relied upon. So, from the revenue record, it appears that earlier Nandu son of Nanak, Kirpa and Khema sons of Chuhra father of the plaintiff as well as elder of the plaintiff no.2 were in possession of the suit property to the extent of their share and thereafter now the present plaintiffs are in possession of the suit property. Since, the defendant and his witnesses have admitted the possession of the plaintiff over the suit property to the extent of their share, so the judgements relied upon by the counsel for the appellants are of no help to the case of the appellants and the learned lower appellate court has rightly passed the judgement and decree in favour of the plaintiffs/respondents.”

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So far as the judgements cited by the learned counsel for the appellants are concerned, there is no dispute about the law laid down therein, but the same are not applicable, being distinguishable on facts. Further, it is the settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first before applying any codified or judgemade

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Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.4420 of 2010 8

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law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others , 2002 (3) SCC 533..

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During the course of hearing, learned counsel for the appellants could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the judgements passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this court to take a different view than the one taken by the learned courts below. 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, while exercising its jurisdiction under Section 100 CPC. Thus, the impugned judgements and decrees deserve to be upheld for this reason, as well.

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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 present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out.

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Resultantly, instant appeal stands dismissed, however, with no order as to costs.

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4.3.2014 (RAMESHWAR SINGH MALIK) GS JUDGE

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Sahni Greesh 2014.05.20 15:07 I attest to the accuracy and integrity of this document High Court, Chandigarh

Nath Ram and Anr. v. Om Parkash and Ors.

Case brief

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Nath Ram and Anr. v. Om Parkash and Ors.

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