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2013 DIGILAW 689 (PNJ)

Ajay Bhatia v. Mulakh Raj Bhandari

2013-05-22

Daya Chaudhary

body2013
JUDGMENT Mrs. Daya Chaudhary, J.: - The present appellants are the legal representatives of defendant No.2 and they have filed the present regular second appeal to challenge the judgment and decree of First Appellate Court reversing the judgment of the trial Court. 2. The plaintiff filed a suit for permanent injunction by pleading that he was owner in possession of an Industrial plot which was allotted to him by the Industry Department. On allotment of plot, the requisite amount was deposited and thereafter, the construction was also raised. However, adjoining to the plot of the plaintiff, there was a plot which was lying vacant. It was pleaded in the suit that the defendants wanted to take forcible possession of the said piece of land and a suit was filed restraining defendants from interfering in peaceful possession over 1048 square yards of land and from demolishing the boundary wall already constructed by the plaintiff-Mulakh Raj Bhandari. The suit was contested by the defendants by filing a separate written statement. Defendant no.1 pleaded in his written statement that the construction was raised by the plaintiff without submitting any site plan and the same was liable to be demolished. Similarly, defendants No.2 and 3 also filed a joint written statement to the effect that no possession was ever delivered to the plaintiff regarding the area, in dispute as the khasra numbers as mentioned in the plaint were also disputed. 3. On perusal of evidence from both the sides, the trial Court decreed the suit of the plaintiff vide judgment dated 27.02.1985 passed by Sub Judge Ist Class, Panipat and the defendants were restrained from interfering in possession of plaintiff over 200 square yards of plot as the said plot was allotted by the Industry Department and no possession beyond 200 square yards can be delivered to the plaintiff. The judgment of the trial Court was challenged before the Additional District Judge, Karnal by way of filing an appeal which was accepted vide judgment dated 24.09.1985 by observing that the plaintiff shall not be dispossessed from the disputed site except in due course of law. It was also held that none of the parties shall raise construction over the disputed property to avoid further complication. 4. The present appeal has been filed by the legal representatives of defendant No.2 which was admitted on 04.03.1986. It was also held that none of the parties shall raise construction over the disputed property to avoid further complication. 4. The present appeal has been filed by the legal representatives of defendant No.2 which was admitted on 04.03.1986. Learned counsel for the appellants has raised the following substantial questions of law involved in the present appeal :- “(i) Whether the injunction can be granted against a true owner, when admittedly plaintiff/respondent has no right, title or interest over the suit property ? (ii)Admittedly the plaintiff was allotted 200 square yards of land by the Industries Department. Whether the plaintiff had any right to encroach upon the adjoining property which is owned and possessed by the defendants/appellants ? (iii)Whether the finding of the lower Appellate Court regarding possession of the suit property are perverse and based on no evidence and thus liable to be set aside ? (iv)Whether in the facts and circumstances of the case, the judgment and decree of the lower Appellate Court reversing the well considered judgment and decree of the trial Court, is sustainable in law as also on facts ?” 5. Learned counsel for the appellants submits that the First Appellate Court has recorded a finding which is contrary to the evidence on record. A specific finding has been recorded by the trial Court, wherein, it has been established that the Director of Industries had allotted only 200 square yards of land adjoining to plot No.E-23. Learned counsel also submits that there is nothing on record to prove the possession of the plaintiff-respondents and the delivery of more than 200 square yards does not arise. As such, totally a different case has been made out by the First Appellate Court. Learned counsel further submits that the lower Appellate Court has failed to consider that no person can possess better title than what he himself has. Even the Industries Department was not the owner nor in possession over the area more than 200 square yards and the question of delivery of possession of more than 200 square yards does not arise. 6. The appeal is of the year 1986 and none is present on behalf of the respondents in spite of adjournments given on various dates. Even the Industries Department was not the owner nor in possession over the area more than 200 square yards and the question of delivery of possession of more than 200 square yards does not arise. 6. The appeal is of the year 1986 and none is present on behalf of the respondents in spite of adjournments given on various dates. Hence, I have left with no choice except to decide the appeal after hearing learned counsel for the appellants and on perusal of judgments of both the Courts below as well as other relevant record of the case. 7. Admittedly, plaintiff-Mulakh Raj Bhandari filed a suit for permanent injunction restraining the defendants permanently from interfering in peaceful possession over 1048 square yards of land and from demolishing the boundary wall raised by the plaintiff. It is also an admitted fact that the plaintiff-Mulakh Raj Bhandari made an application for allotment of land adjoining to his industries which is already working in plot No.E-23. It is also admitted that a plot of 200 square yards was allotted by the Industry Department which is adjoining to plot No.E-23. As per claim in the suit, it was stated that he has been allotted 1048 square yards of land. On perusal of documents and other evidence on file, the trial Court had partly decreed the suit of the plaintiff and the defendants were restrained from interfering in possession of plaintiff over 200 square yards of land. However, it was observed that no possession more than 200 square yards can be handed over. A finding recorded by the trial Court was reversed by the First Appellate Court by observing that the plaintiff shall not be dispossessed from the disputed site except in due course of law and it was also observed that none of the parties shall raise construction over the disputed property. A finding recorded by the First Appellate Court is totally contrary to the evidence on record as nothing is on record to show that the plaintiff was ever allotted the adjoining plot which was more than 200 square yard. Although, as per terms and conditions of the allotment against condition No.2(iv), the price of the land was to be charged on demarcation at site and proportionate costs of excess area was to be paid and in case it was found the less proportionate cost was to be adjusted towards development charges. Although, as per terms and conditions of the allotment against condition No.2(iv), the price of the land was to be charged on demarcation at site and proportionate costs of excess area was to be paid and in case it was found the less proportionate cost was to be adjusted towards development charges. The said condition is reproduced as under :- “2(iv) that the price of the land will be charged as demarcated at site and proportionate costs of excess area will be charged and if found less proportionate cost will be adjusted towards development charges.” 8. Nothing is on record to show as to whether any demarcation has been done or not. Although the condition which has been mentioned in the allotment letter does not appear to be reasonable as the area of total land beyond the plot of 200 square yards was much more. It cannot be said that a small portion of land was left out and the same cannot be allotted to any other person. The remaining portion of land is much more than the area of plot which was allotted to the plaintiff. This condition inserted in the allotment letter appears to be unreasonable just to give benefit to the plaintiff. The approach of the Industry Department to give favour to the plaintiff is unwarranted which is also clear from the fact that none is present to represent the Industry Department. Even it has not come on record, neither in the judgment of the trial Court nor of the First Appellate Court, whether any price has been paid of the additional area adjoining to the plot of the plaintiff or not. Nothing can be commented about status of that area as even the counsel for the appellants is not aware whether that area which was adjoining to plot of 200 square yards is with the plaintiff or not. The judgment of the First Appellate Court is contrary to the evidence and also the finding recorded by the trial Court. Although, the trial Court has given a specific finding that the plaintiff has a right over 200 square yards of plot and there cannot be any construction over the land other than 200 square yards. 9. In view of the facts as mentioned above, the present appeal is allowed and the judgment of the First Appellate Court is set aside. Although, the trial Court has given a specific finding that the plaintiff has a right over 200 square yards of plot and there cannot be any construction over the land other than 200 square yards. 9. In view of the facts as mentioned above, the present appeal is allowed and the judgment of the First Appellate Court is set aside. The finding recorded by the trial Court is affirmed to the extent that the respondents are restrained from interfering in the peaceful possession over 200 square yards of plot only. 10. The judgment of the trial Court is also modified to the extent that the Industry Department is directed to proceed to claim the adjoining area, if the same has not been allotted to the plaintiff or the other party. In case, the same has been allotted to any other party or the plaintiff, an enquiry be conducted as to why such un-reasonable condition was inserted in the allotment letter. For fixing responsibility in the case, an enquiry be conducted by a Senior Officer of the Industry Department about the area adjoining to the plot of 200 square yards and in case, some officer/official is found to be involved in any manner, necessary action be taken in accordance with law. ---------0.B.S.0------------