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2009 DIGILAW 1224 (PNJ)

Baldev Singh v. Kulbir Singh And Others

2009-07-23

SABINA

body2009
Judgment Sabina, J. 1. This order shall dispose of RSA Nos.4369 and 4370 of 2006 as these have arisen out of same suit/counter claim. 2. Plaintiff Baldev Singh filed a suit for permanent injunction inter alia restraining the defendants from interfering in the land dispute. The suit of the plaintiff was dismissed and counter claim of the defendants was allowed by the Civil Judge (Jr.Divn.) Amritsar vide judgment and decree dated 26.10.1998. In appeal, the said judgment and decree were upheld by the Additional District Judge (Adhoc), Amritsar vide judgment and decree dated 5.10.2006. Hence, the present appeals by the plaintiff. 3. Brief facts of the case, as noticed by the lower appellate Court in para Nos.l to 4 of its judgment, are as under:- "1. The facts of the case briefly stated are that Baldev Singh, appellant/plaintiff filed suit for permanent injunction for restraining the defendants from interfering in his possession over the property in dispute. It was alleged in the plaint that the plaintiff is in possession of the land in dispute measuring 24 K - 11 M. detailed in the head note of the plaint and he is cultivating the said land as prospective vendee under the agreement to sell dated 12.8.1975 executed by the defendants and their deceased mother Jatto @ Jind Kaur in his favour followed by another agreement to sell dated 17.6.76 through which period was extended for execution of the Sale Deed. Sale Deed was to be executed by the defendant after getting permission from the competent authority under Urban Land Ceiling and Regulation Act, 1976. The defendants have not been able to get permission from the competent authority, as per agreement. Smt. Jatto had died and the defendants are his legal representatives. The defendants are threatening to take forcible possession of the land with the help of their husband and relations. They tried to interfere in his possession over the suit land. He asked the defendants time and again not to take law in their own hands, but they refused. As such, he is entitled to permanent injunction restraining the defendants from interfering in his possession, forcibly on the land in dispute. 2. The suit was contested by the defendants. In their written statement they took preliminary objections that the suit is not maintainable. Plaintiff had not come to Court with clean hands and has concealed facts. As such, he is entitled to permanent injunction restraining the defendants from interfering in his possession, forcibly on the land in dispute. 2. The suit was contested by the defendants. In their written statement they took preliminary objections that the suit is not maintainable. Plaintiff had not come to Court with clean hands and has concealed facts. The possession of the plaintiff is permissive and on behalf of the owners and as such, he is not entitled to injunction, plaintiff has got no locus standi to file the suit, the suit is not maintainable in the present form, the correct Khasra Nos. of the property have not been mentioned and that entries in the revenue record are wrong. Regarding merits, it was stated that the possession of the plaintiff is under agreement to sell executed by the defendant in favour of the plaintiff. It was admitted that the plaintiff was in possession under agreement to sell. The defendants pleaded that the Sale Deed was to be executed after getting permission from the competent authority and they actually applied for the permission but permission was refused by the competent authority and as such, Sale Deed could not be executed as per agreement. They have been demanding possession from the plaintiff and he had been promising to give the same. The plaintiff in November, 1994 refused to give possession. It was denied by the defendants that they have tried to take forcibly possession of the property or they intended to take forcible possession of the land. 3. Defendants filed counter claim for recovery of possession, pleading therein that they being owner of the property in dispute and permission to execute the Sale Deed in favour of the plaintiff as per agreement having been refused by the competent authority, they are entitled to take possession of the property in dispute from the plaintiffs. Possession of the plaintiffs was permissive and was on their bahalf, and as such, they are entitled to decree for possession of the property in dispute. 4. In the replication filed by the plaintiff, allegations made in the written statement were denied and those made in the plaint were reiterated. Possession of the plaintiffs was permissive and was on their bahalf, and as such, they are entitled to decree for possession of the property in dispute. 4. In the replication filed by the plaintiff, allegations made in the written statement were denied and those made in the plaint were reiterated. In the replication, it was pleaded by the plaintiff that his possession has been adverse, hostile, uninterrupted for more than 12 years, to the knowledge of the defendants and world at large and he has even become owner of the property through adverse possession. His possession not being permissible, he acquired title in the property in dispute." 4. On the pleadings of the parties, following issues were framed by the trial Court:- "1. Whether the plaintiff is entitled to relief of permanent injunction as prayed for? OPP 2. Whether the defendant is entitled to relief of possession as claimed in the counter-claim? OPD 3. Whether the plaintiff No.1 have become owner in possession of the suit land on the basis of adverse possession? OPP 4. Whether the plaintiffs have got no locus standi to file the present suit? OPP 5. Relief." 5. The following additional issues were also framed by the trial Court on 18.3.1997:- 4A Whether the defendants are estopped by their own act and conduct from filing the present counter claim? OPP 4B Whether the counter claim is within time? OPD 6. Learned counsel for the appellant has submitted that the possession of the plaintiff was by way of adverse possession after the date for execution of the sale deed had lapsed. The plaintiff had been put in possession of the suit property on the basis of an agreement to sell executed between the parties. However, permission was not granted to the defendants to sell the suit property by the competent authority and from the said date i.e. 20.7.1976, the possession of the plaintiff over the suit property was adverse to have to be considered. It is out of such applicants that selection and appointments are made. Consequently, it is from the date of appointment in pursuance of such regular selection that the period qualified for the purposes of seniority. In that regard reliance may be placed on a Constitution Bench judgment of Honble the Supreme Court rendered in the case of Direct Recruit Class II Engg. Consequently, it is from the date of appointment in pursuance of such regular selection that the period qualified for the purposes of seniority. In that regard reliance may be placed on a Constitution Bench judgment of Honble the Supreme Court rendered in the case of Direct Recruit Class II Engg. Officers Association v. State of Maharashtra, A.I.R. 1990 S.C. 1607; Y.H.Pawar v. State of Karnataka, (1996)10 S.C.C. 444 and Union of India v. Dharam Pal* (2009)4 S.C.C. 170. In Dharam Pals case (supra) Honble the Supreme Court has explained the principles in the following words: "An employee appointed to a post according to rules is entitled to seniority from the date of his appointment and not from the date of confirmation. However, where "initial" appointment is ad hoc and not according to rules and the appointment is made as a stopgap arrangement, period of officiation does not count for seniority. When ad hoc appointment is made, the same should be done according to rules. If mandatory provisions of the rules are not complied with, the period does not count for seniority." 7. All the aforesaid judgments do not leave any manner of doubt that the period of service rendered on ad hoc basis would not qualify for the purposes of seniority. The findings of both the Courts below on the aforesaid issue also deserves to be affirmed and the question of law is answered against the plaintiff appellant. 8. As a sequel to the aforesaid discussion, this appeal fails and the same is dismissed. Appeal dismissed