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2012 DIGILAW 1663 (PNJ)

Harjinder Singh and another v. Hardev Kaur

2012-11-30

M.JEYAPAUL

body2012
M. Jeyapaul, J:— 1. The appellants who were non-suited by the Courts below in the suit laid by them for permanent injunction restraining the defendants from raising any construction on the suit passage and also from cultivating any crop in the said passage, have preferred the present appeal before this Court. 2. It is the contention of the plaintiffs that they are owners in possession of land measuring 18 kanals within the revenue limits of village Koerwala. A passage measuring 1 kanal 9 marlas comprised in khasra No. 15//7/1/2 (0-8), 14/1/2 (0-8), 17//1/2(0-8) and 24/1/2(0-5) has been left for approaching the suit land vide order dated 9.6.1961 passed by the Settlement Officr during consolidation. It is further contended that in mutation No. 2126 dated 3.7.1967, the said passage has been reflected. The demarcation of the said passage also has been done in the revenue record on 7.9.2010. Alleging that the defendants have no concern with the passage, the aforesaid reliefs have been sought for by the plaintiffs. 3. The defendants contended that they are owners in possession of land measuring 80 kanals comprised in khasra No. 15//7/2 (2-8), 8(8-0), 12(8-0), 13(8-0), 14/1(2-8), 17/1(1-4), 9(8-0), 18/1(4-0), 21(6-18), 22(6-18), 23(6-18), 24/1(2-3), 18/2(4-0), 19/2(4-0), 17/1(1-4) and 20 min (1-19) situated in the area of village Koerwala vide sale-deed No. 352 dated 6.5.1964 registered on 14.5.1964. The mutation has been sanctioned on the basis of the above sale-deed in their favour. There is no passage to the above-said land purchased by them nor is there any passage running as alleged by the plaintiffs. Previously, Gurnam Singh and Gram Panchayat of village Koerwala made an attempt to forcibly lay a passage. Bhola Singh filed a suit as against them in civil suit No. 646 dated 8.6.1994. The same was decreed in favour of Bhola Singh. Plaintiffs had got demarcated the land in connivance with the revenue officials at the back of the defendants; therefore, it has no effect on the rights of the defendants. There is no passage in existence even as per report of demarcation. Having thus contended, the defendants sought for dismissal of the suit. 4. Both the Courts below having held that the plaintiffs who sought relief of permanent injunction failed to establish their right over the property, dismissed the suit. 5. There is no passage in existence even as per report of demarcation. Having thus contended, the defendants sought for dismissal of the suit. 4. Both the Courts below having held that the plaintiffs who sought relief of permanent injunction failed to establish their right over the property, dismissed the suit. 5. Learned counsel appearing for the appellants would submit that the trial Court had given undue importance to the suit which was laid by one Bhola Singh as against the 3rd parties including Gram Panchayat. Even in the absence of any evidence contrary to the evidence let in by the plaintiffs, the Courts below have recorded a finding as against the plaintiffs. It is his submission that the documents produced would go to establish that there is a passage leading to the property of the plaintiffs. Therefore, it is his submission that the Courts below have rendered a perverse finding. 6. It is true that the defendants having filed written statement, vanished from the scene without leading any evidence. But the plaintiffs who have come forward with a prayer for injunction are bound to establish the existence of the passage and their right to use the same. Absence of contrary evidence would not ipso facto clothe the plaintiffs with a right to get a decree for permanent injunction. 7. Plaintiffs have relied upon documents Exhibit P-1 to P-4. The first appellate Court having thoroughly scanned those documents, has rightly held that the aforesaid documents do not reflect any passage measuring 1 kanal 9 marlas leading to the property of the plaintiffs. Neither the order passed by the Settlement Officer Consolidation on 9.6.1961 nor mutation No. 2126 dated 3.7.1967 which is allegedly reflected in the jamabandi and the demarction, was produced to establish the existence of the passage as alleged by the plaintiffs. In the absence of any documentary proof to establish the case of the plaintiffs, the Courts below have rightly rejected the plea for permanent injunction sought for by the plaintiffs. Exhibit P-1 would show that the plaintiffs are owners of the land falling in khasra No. 15//2(8-0), 3(8-0) and 4/1(8-0). Exhibit P-3 would disclose that the Gram Panchayat was owner of the property in khasra No. 15/2/7/2/1(0-8), 14/1/2(0-8), 17/1/2(0-8) and 24/1/2(0-5). Exhibit P-1 would show that the plaintiffs are owners of the land falling in khasra No. 15//2(8-0), 3(8-0) and 4/1(8-0). Exhibit P-3 would disclose that the Gram Panchayat was owner of the property in khasra No. 15/2/7/2/1(0-8), 14/1/2(0-8), 17/1/2(0-8) and 24/1/2(0-5). It is relevant to refer in this context the evidence of PW-1 Harjinder Singh who has deposed that the passage was exclusively used by the plaintiffs whereas PW-2 Banta Singh has given evidence to the effect that the passage leading to the property of the plaintiffs was used by the General Public. Such a contradictory stand has been projected through the evidence adduced by the plaintiffs. 8. The Gram Panchayat has not come forward with any suit to restrain the defendants from putting up any construction or raising any crop on the disputed property. Plaintiffs also have not established the existence of the passage and their right to use the same. In view of the above, in my considered view, both the Courts below have rightly analyzed the evidence on record and rejected the prayer for permanent injunction sought for by the plaintiffs. There is no perversity in the findings rendered by the Courts below. Therefore, the appeal stands dismissed. 9. As it is found that the respondent-plaintiffs for the reasons best known to them have vanished after filing the written statement and never appeared before the Courts below, a copy of this judgment be sent to the 1st respondent Hardev Kaur and 2nd respondent Surjit Singh free of cost.