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2014 DIGILAW 342 (PNJ)

Subhash v. Ram Avtar

2014-02-12

RAKESH KUMAR GARG

body2014
JUDGMENT Mr. Rakesh Kumar Garg, J.:- The plaintiff-appellant Subhash filed the instant suit seeking following relief:- “Suit for injunction prohibitory and mandatory to the effect that the plaintiff is owner in possession of agri. land measuring 34K-8M bearing khasra No.5031 which has been shown in red colour in the site plan aksh sijra at the time of his fore-fathers situated in Hissar, Distt. Hisar. Plaintiff has constructed a wall Mark AB in southern side and kotha and tubewell in the disputed land and he has sown jawar. Defendant has no right or concern with the aforesaid land. Defendant be restrained from demolishing the southern wall, construction and dispossessed forcibly and illegally and interference from the land. On the basis of evidence oral as well as documentary of all types.” 2. The facts as per the averments made by plaintiffappellant are that he is in possession of suit land as owner Hasab Rasad Kabja and is in cultivating possession of the appellant since the time of his forefathers. It is the case of the plaintiff-appellant that he constructed a wall towards the Southern side of the suit land and had also constructed a kotha at the spot in the suit land and also installed a tubewell in the suit land for irrigation purposes. The defendant-respondent had no concern with the suit land. On the Northern side of the suit land, Khasra Nos.5046 and 5049 existed. According to the plaintiff, one Chaudhary Shishpal Singh, Advocate was owner of Khasra No.5047 and the same was sold out later on. There were number of owners of Khasra No.5046 which was also sold out to the vendees and thereupon, a colony under the name and style of Ishwar Cooperative Society came into existence on Khasra No.5046. It was apprehended by the plaintiffappellant that the defendant-respondent was an unscrupulous person and was having an intention to break the Southern wall of the suit land forcibly, for which, he had no right under the law. Thus, apprehending interference into the suit land, plaintiff filed the instant suit seeking permanent injunction. 3. Upon notice, defendant-respondent appeared and filed his written statement raising various preliminary objections. It was specifically averred that the suit has been filed by the plaintiff appellant with an ulterior motive to grab the land bearing khasra No.5046 and to harass him. Thus, apprehending interference into the suit land, plaintiff filed the instant suit seeking permanent injunction. 3. Upon notice, defendant-respondent appeared and filed his written statement raising various preliminary objections. It was specifically averred that the suit has been filed by the plaintiff appellant with an ulterior motive to grab the land bearing khasra No.5046 and to harass him. It was further stated that the plaintiff had concealed material facts from the Court with regard to the earlier litigation in respect of the suit land, which culminated into a decree dated 27.9.2002 passed by Shri Satish Ahlawat, the then ADJ, Hissar, wherein it was held that the plaintiff-appellant has no right, title or interest in respect of the suit land, which is the subject matter of the present suit. According to the defendant, it was also held that the suit has been filed in order to usurp the suit land belonging to the Gram Panchayat by taking advantage of the entries in the revenue records in collusion with the revenue authorities and none of the parties are in possession of the suit land because it was a Johar at the spot and the major portion of the suit land has been recorded as uncultivable (vacant). On merits, the defendant denied the ownership as well as possession of the plaintiff over the suit land and on the basis of aforesaid submissions, dismissal of the suit was prayed for. 4. Plaintiff filed replication to controvert the pleadings of the defendant. However, the fact of the other litigation relating to the case of “Anoop Singh v. Hari Singh etc.” was admitted, further stating that Regular Second Appeal was pending before this Court. Plaintiff further admitted that Khasra No.5031 is adjacent to the land of the defendant and that defendant had sold out that entire adjoining land. 5. On the basis of pleadings of the parties, following issues were framed:- “1. Whether the plaintiff is in possession of the property in question situated at Village Mauja Hissar as shown in Naksha Aksh-shijra in red colour since the time of his ancestors as pleaded in the plaint? OPP. 2. Whether the defendant had installed a wall as depicted by Mark A to Mark B over the site in question along with kotha and also installed a tubewell as detailed in the head note of the plaint? OPP 3. OPP. 2. Whether the defendant had installed a wall as depicted by Mark A to Mark B over the site in question along with kotha and also installed a tubewell as detailed in the head note of the plaint? OPP 3. Whether the defendants are liable to be restrained from interfering the peaceful possession of the plaintiff? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Whether the plaintiff has concealed the material facts from the court? OPD 6. Whether the suit of the plaintiff is bad on account of non-joinder of necessary party? OPD 7. Whether the plaintiff is estopped to file the present suit by his own act and conduct? OPD 8. Whether the suit of the plaintiff is barred by the principle of res-judicata? OPD 9. Whether the civil court has no jurisdiction to entertain and try the present suit? OPD 10. Relief.” 6. After hearing learned counsel for the parties and considering the evidence on record, the trial Court decreed the suit in the following manner:- “It is ordered that the suit of the plaintiff is decreed with costs to the effect that defendant is restrained from interfering into the possession of the plaintiff over the suit land falling in khasra no.5031 measuring 34K-8M land of the revenue estate of Hissar and also restrained from demolishing the wall as existing upon the southern side of the suit land. Defendant is also restrained from forcibly possessing or constructing anything upon the suit land. In accordance with the above observations, the suit of the plaintiff is hereby decreed with costs.” 7. Aggrieved from the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the first Appellate Court which was accepted vide impugned judgment and decree dated 5.12.2013. 8. While accepting the appeal, the lower Appellate Court found that the plaintiff-appellant has failed to bring on record any evidence to establish his ownership over the disputed property, as in the jambandi (Ex.P-33) for the year 1983-84, the land in dispute has been shown to be shamlat deh in the column of ownership and thus, the land in dispute was a shamlat deh. However, grandfather of the plaintiff-appellant has been shown to be in possession. However, grandfather of the plaintiff-appellant has been shown to be in possession. While recording the findings against the appellant, lower Appellate Court has recorded that except the jamabandi for the years 1979-80 and 1983-84, no revenue record including the record of rights or khasra girdawaries maintained by the revenue department has been produced on record. In fact, the first Court has recorded a finding that the revenue record prior to the year 1979-80 and after 1983-84 has been withheld by the appellant intentionally. The lower Appellate Court further found that from Ex.D1, which is jamabandi of the year 2003-04, the possession over the suit property has been shown to be of Ram Chander etc. and the appellant has not been shown to be in possession. The Court also found that decree dated 27.9.2002 passed by Shri Satish Ahlawat, the then ADJ, Hissar operates as estoppel against the appellant to some extent, because in that suit, a specific finding has been recorded that the appellant was not in possession over the disputed property. In fact, both the parties were making abortive attempts to usurp the property of the Gram Panchayat. Moreover, the real owner of the suit property i.e. Gram Panchayat, which was a necessary party, was not arrayed as a party in the suit intentionally. The lower Appellate Court has further found that in fact because of the concealment of material facts from the Court, the suit of the plaintiff was not maintainable. 9. Still not satisfied, the plaintiff has filed the instant appeal stating that following substantial questions of law arise in this appeal:- (i) Whether the impugned judgment/decree passed by the ld. First Appellate Court is totally illegal, without jurisdiction, perverse, beyond pleadings misreading and non-appreciation of evidence and is not sustainable in the eyes of law, in the facts and circumstances of the case? (ii) Whether issue of ownership is relevant for the purpose of deciding a suit for permanent injunction? (iii) Whether the ld. First appellate court is legally justified in dismissing the suit of plaintiff/appellant when defendant/ respondent is not at all asserting any right, title or interest or possession over Kh.No.5031 rather admitting the claim of plaintiff/ appellant over Kh.No.5031 as given in various proceedings mentioned in para No.3 to 5 of the grounds of appeal? (iv) Whether the judgment passed by the Ld. (iv) Whether the judgment passed by the Ld. First appellate court is totally without jurisdiction, based on irrelevant facts, malafide and is sustainable in the eyes of law? (v) Whether the judgment passed by the Ld. first appellate court without recording issue-wise findings and without considering and appreciating the pleadings, evidence and the written submissions made by the counsel for the appellant, can be termed as a judgment under law within the requirement of Order 41 Rule 30- 31 CPC? 10. At the outset, it may be noticed that counsel for the appellant could not dispute the fact that in the judgment and decree dated 27.9.2002 passed by Shri Satish Ahlawat, the then ADJ Hissar, a finding has been recorded that the suit land is shamlat deh which is a Johar at the spot and the appellant was not in possession of the same. It may further be noticed that learned counsel for the appellant could not dispute that the plaintiff has failed to fulfill the requirement of Order 7 Rule1(j) CPC, as the factum of earlier litigation with regard to the subject matter has not been mentioned in the instant civil suit. 11. In fact, counsel for the appellant could not dispute the other findings of the lower Appellate Court, as noticed above. 12. However, counsel for the appellant has vehemently argued that it is a simple suit for permanent injunction which is to be decided on the basis of possession of the parties and the question of title is not involved and therefore, the findings recorded in the judgment and decree dated 27.9.2002 passed by Shri Satish Ahlawat, the then ADJ, Hissar will not be of any effect in the instant suit. It is the further case of the appellant that admittedly, the defendant-respondent has nothing to do with the property in dispute which comprises in Khasra No.5031 and moreover, the appellant through his forefathers has been shown to be in cultivating possession of the suit property and even if it is a shamlat deh belonging to Gram Panchayat, he was entitled to protect his possession against the defendant. 13. The argument, as raised, seems to be very attractive, however, the same is liable to be rejected outrightly. In fact, by raising such an argument, the appellant has demonstrated that he has no respect for rule of law. 13. The argument, as raised, seems to be very attractive, however, the same is liable to be rejected outrightly. In fact, by raising such an argument, the appellant has demonstrated that he has no respect for rule of law. A finding has already been recorded against the appellant in the judgment dated 27.9.2002 passed by Shri Satish Ahlawat, the then ADJ, Hissar to the effect that land measuring 34 kanals 8 marlas comprised in Khasra No.5031 which is subject matter of the instant suit, is a shamlat deh being a Johar at the spot and the appellant is not in possession of the same, yet the appellant has the courage to file the instant suit seeking permanent injunction claiming possession over the suit property and without disclosing the earlier litigation in this regard. 14. Not only this, the appellant has not placed on record the revenue record with respect to the suit land and has tried to mislead the Courts below by placing reliance on nehri girdawaries instead of revenue girdawaries. It is well established that the person who conceals material facts from the Courts is not entitled to any relief and is to be thrown out at the threshold. In fact, in view of the findings in the earlier litigation, the instant suit was not maintainable in its present form. 15. In view of the aforesaid, no interference is warranted in the impugned judgment and decree of the first appellant Court. 16. Thus, no substantial question of law arises in this appeal. 17. Dismissed. ---------0.B.S.0------------