Gajraj Singh And Ors vs Megh Raj
2021 Latest Caselaw 521 P&H

RSA-3023-2018 (O&M)
and connected appeal                         1

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH

                           1. RSA-3023-2018(O&M)


Gajraj Singh and others
                                                   .......Appellants
                                     Versus

Megh Raj
                                                   ......Respondent

                         2. RSA-6206-2017(O&M)


Gajraj Singh and others
                                                   .......Appellants
                                     Versus

Megh Raj
                                                   ......Respondent

                                          Date of decision: 11.02.2021

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL

Present:-     Mr. Ashok Aggarwal, Advocate for the appellants
              (in both appeals)

              Mr. Manoj Kumar Sood, Advocate for the respondent
              (in both appeals)

ANIL KSHETARPAL, J.

By this judgment two Regular Second Appeals i.e RSA-

3023-2018 and RSA-6206-2017 shall stand disposed of.

Learned counsel for the parties are ad idem that both these

appeals can be disposed of by a common judgment.

In both the appeals, the defendants in the trial court are the

appellants.

These appeals have been filed against the judgment passed

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by learned Additional District Judge, Faridabad, reversing the judgment

of the learned trial court. The plaintiff/respondent-Megh Raj filed a suit

for permanent injunction claiming that he is owner in possession of the

residential plot measuring 90 feet x 35 feet depicted by letters ABCD in

the lay out plan attached with the plaint. The plaintiff claimed that the

aforesaid property is situated within the revenue estate of village Sarai

Khawaja, District Faridabad and bounded by

East : Rasta Sara Aam

West : Mandir (Temple)

North : House of Chutan

West : House of Ram Chander

It is the pleaded case of the plaintiff that previously

defendants' predecessor had filed a suit for injunction against the

plaintiff's father which was dismissed on 05.11.1999. Appeal filed

against the judgment of the learned trial court was also dismissed on

01.10.2011. The defendants contested the suit by submitting that the suit

filed by the plaintiff is barred by res-judicata. It is claimed that the

defendants are in settled possession of land bearing Khewat no. 310

Khatoni no. 372 rectangle no. 7 killa no.17(1-10) situated within the

revenue estate of Village Palla as "Gair Mourusi" tenant under the

Municipal Corporation, Faridabad. The defendants also filed a counter

claim that they are "Gair Mourusi" tenants and are in possession of the

land for the last 50 years. On appreciation of pleadings, the following

issues were framed:-

"1. Whether the plaintiff is entitled to

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RSA-3023-2018 (O&M)

the relief of Permanent injunction, as prayed for? OPP

2. Whether the present suit is not maintainable in the present form? OPD

3. Whether the plaintiff has no cause of action or locus standi to file the present suit ? OPD

4. Whether the plaintiff has suppressed material facts from the knowledge of the court and is not entitled to the relief as claimed for? OPD.

5. Relief.

Thereafter, vide order dated 8.9.2014 following issues were framed by ld. Civil Judge, with respect to issues involved in the counter-claim:-

6-A Whether the counter-claimant is entitled to relief of decree of permanent injunction as prayed for? OPD.

6-B Whether the counter-claim is not maintainable? OPP 6-C Whether the counter-claimant has no cause of action? OPP."

Learned trial court dismissed the suit, however, as noticed

above, learned First Appellate Court has reversed the judgment of the

trial court.

Before this Court examines the contentions of the learned

counsel for the appellants, certain important findings, correctness

whereof has not been assailed by the learned counsel for the appellants

needs to be noticed.

(i) It is not in dispute that Kanhiya filed a suit against the

plaintiff's father, which was dismissed vide judgment dated 05.11.2019.

The aforesaid judgment was affirmed by the First Appellate Court on

01.10.2011.

(ii) Defendant no.1 Harinder Singh had taken a stand in

civil suit no. RBT 535 dated 30.10.2000 that the land is owned and

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possessed by the plaintiff-Megh Raj who has not been impleaded as a

party in the said suit. The defendants had also filed a suit against

Chuttan etc. with respect to the suit property which was dismissed by the

court of Sh. R.K.Dogra, learned Civil Judge, Faridabad, on 05.11.1999.

(iii) The defendants have not produced any lay out plan to

prove that the property in dispute falls within the revenue estate of

village Palla and not within the revenue estate of village Sarai Khawaja.

This Court has heard learned counsel for the parties at

length and with their able assistance gone through the paper books.

Learned counsel for the appellants has made the following submissions:-

(a) The details of the property have not been properly

given and therefore, the suit was not maintainable.

(b) That the relief of possession could not be granted as

no amendment of the plaint was allowed.

It may be noticed that the entire area surrounding the plot in

dispute has already developed into a colony and has come under the

purview of Municipal Corporation, Faridabad. The reference to the

revenue estate is only for the purpose of identification. The plaintiff

has not only identified the property by its size by describing its length

and breath but also given the details of the properties surrounding the

plot in dispute. Through the site plan Ex.P1 the property has been

identified. Still further, learned First Appellate Court has examined the

record and found that the description of the property given in Ex. P1

matches with the lay out plan Ex.PZ, produced in execution petition in

some other case. The Court noticed that only difference between the two

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lay out plans is with regard to the property situated on the western side.

It has been noticed that in the lay out plan Ex.P1 towards the western

side, house of Ram Chander has been shown whereas in Ex.PZ the house

of Ram Chander, Girwar and Girdhari, who are brothers, has been

shown. Thus, the learned First Appellate Court has come to a

conclusion that the identification of the property is not in dispute. Still

further, the defendants while filing the written statement do not dispute

that their father did file a suit against the plaintiff which was dismissed

on 05.11.1999. Further, the defendant no.1 Harinder Singh, as noticed

above, has himself pleaded in a different litigation that the property in

dispute is owned and possessed by the plaintiff.

Next argument of the learned counsel can be examined from

two different angles. It is not disputed by the learned counsel for the

appellants and noticed by the courts below that the plaintiff alleged

forcible dispossession at the hands of the defendants during the

pendency of the suit. He did file an application for amendment of the

plaint so as to add the relief of mandatory injunction, which was allowed

by the trial court. The defendants did file a revision petition, however,

the same was disposed of while clarifying that the amendment would not

affect the property in Village Palla. Thus, it is apparent that the

amendment allowed by the trial court was never set aside. The

defendants have failed to prove that the property in dispute is located in

the revenue estate of Village Palla. Hence, learned First Appellate Court

has correctly granted the relief of possession.

Still further, this aspect can be examined from another

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angle. Learned First Appellate Court, on appreciation of evidence, has

found as a matter of fact that the plaintiff was dispossessed during the

pendency of the suit before the trial court. This finding has not been

challenged by the learned counsel for the appellants. In such a situation,

even in the absence of application for amendment, the court is well

within its power to mould the relief, particularly, when the plaintiff has

been dispossessed during the pendency of the suit. The courts have to

do substantive justice and are not expected to defeat justice merely on

the ground of technicalities. It has been noticed that the defendants have

already unsuccessfully indulged in multifarious litigation.

Keeping in view the aforesaid facts, no ground to interfere

in the detailed judgment passed by the Learned First Appellate Court is

made out. Hence, both the appeals are dismissed.

11 .02.2021                                         (ANIL KSHETARPAL)
rekha                                                      JUDGE
Whether speaking/reasoned   Yes /No
Whether Reportable          Yes / No




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