Punjab-Haryana High Court
Man Singh And Ors vs Kreshan on 25 March, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
123
RSA-661-2022 (O&M)
Date of decision: 25.03.2022
Man Singh and another .....Appellants
Versus
Kreshan @ Roshan Lal .....Respondent
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Present : Mr. K.C. Bhatia, Advocate for the appellants.
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MANJARI NEHRU KAUL, J. (ORAL)
1. The appellants-defendants No.2 and 4 are assailing the
concurrent findings recorded by both the Courts below in favour of the
respondent-plaintiff in a suit for mandatory injunction. The suit for
mandatory injunction was filed by the respondent-plaintiff for directing
defendants No.1 to 4, namely Kuldeep Singh @ Pappu, Balkishan @
Tilu, Parwara and Mann Singh to hand over the vacant possession of
the suit property (bara measuring 0K-7M comprised in Khewat
No.318/285, Khatoni No.545, Khasra No.306, situated in village
Singhra, Tehsil Nissing, District Karnal vide jamabandi for the year
2006-07) and removal of construction raised thereon.
2. For the sake of convenience, the parties to the lis,
hereinafter shall be referred to by their original position in the suit.
3. Defendant No.2-Balkishan @ Tilu and defendant No.4-
Man Singh contested the suit by asserting that they were bonafide
purchasers of the suit property, having purchased the same for a sale
consideration of Rs.2,10,000/- each, from one Tarsem Singh son of
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Ajaib Singh. After receiving full and final payment of the sale
consideration, said Tarsem Singh delivered actual and physical
possession of the suit property to defendants No.2 and 4 and also
executed an agreement to sell dated 23.01.2014 which in turn was duly
attested from a public notary at Karnal. Ever since 23.01.2014,
defendants No.2 and 4 had been in actual and physical possession of
the suit property as owner thereof.
4. Both the Courts below concurrently recorded findings of
fact that the plaintiff successfully proved that he along with proforma
defendants was the owner of the property which was in possession of
defendants No.1 to 4. The plaintiff himself and Bhaktawar stepped into
the witness box as PW1 and PW2 and tendered copy of passbook of
land holding as Ex.P1, Mutation No.126 as Ex.P2, Hindi Translation
Mutatioin No.126 as Ex.P2/T, copy of Aks Sajra as Ex.P3, copy of
jamabandi of 2016-17 as Ex.P4. Copy of khasra girdawari as Ex.P5,
copy of death certificate of Gendi Devi as Ex.P6, copy of Aadhaar Card
of Roshan Lal as Ex.P7, copy of judgment and decree dated 02.04.2014
as Ex.P8 and P9 and closed the evidence. The defendants examined
Mann Singh as DW1, Bal Kishan as DW2 and Amar Singh as DW3 and
proved original agreement Ex.D1, Electricity bills as Ex.D2 to D8, site
plan Ex.D9, copy of agreement Mark-P, original agreement Ex.D10 and
site plan as Ex.D11. Thereafter, defendants No.2 and 4 tendered
electricity bills as Ex.D10 to D18 and closed their evidence.
5. I have heard learned counsel for the appellants-defendants
No.2 and 4 at length and perused the paper book.
6. Learned counsel while drawing the attention of this Court
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to the impugned judgment and decree passed by the Courts below has
argued that both the Courts failed to appreciate that the suit filed by the
plaintiff was for mandatory injunction and not a suit for declaration
with possession. Hence, the plaintiff was required to prove that the
defendants had forcibly dispossessed him from the property in dispute.
It was also argued that no complaint whatsoever or any representation
had been brought on record to support that the plaintiff had been ever
dispossessed from the suit property. It was also argued that the Courts
below ignored the specific plea taken by defendants No.2 and 4 that
they both were the absolute owners in possession of (3 marlas each out
of 7 marlas) suit property, on which houses already stood constructed
by its earlier owner Ajaib Singh, which in turn stood fully proved from
the agreement to sell as well as the electricity bills on record. Learned
counsel still further argued that the Courts below failed to consider that
the jamabandi and mutation entries as well as passbook of land
holdings produced by the plaintiff was not sufficient to prove that the
suit property belonged to them as the same was in abadi deh in lal dora
of the village and the houses were constructed by its previous owner
Ajaib Singh which as already submitted earlier stood proved from the
agreement to sell in favour of defendants No.2 and 4. Learned counsel
went on to argue that the electricity bills in the name of the previous
owners i.e. Ajaib Singh with respect to Bara No.306 of land measuring
7 marlas, of which defendants No.2 and 4 were subsequent owners, was
exhibited as Ex.D2 to D8 and Ex.D10 to D18 for the period from
12.12.2016 to 17.04.2018, which clinchingly established that the
possession of the suit property was with defendants No.2 and 4 and as
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such they were owners in possession of the same.
7. This Court does not find substance in the aforesaid
submissions made by the learned counsel for the reasons to follow.
8. The case of the plaintiff was that he along with proforma
defendants was owner of the suit property as reflected in the jamabandi
for the year 2006-07. Defendant No.1 Kuldeep Singh and his brother
Tarsem Singh had tried to interfere in the possession of the plaintiff and
the proforma defendants as a result of which the plaintiff had earlier
filed a suit for permanent injunction on 18.12.2012 which was decreed
on 02.04.2014. However, using muscle power, the plaintiff was
dispossessed by the defendants on 03.08.2014 from the suit property
and a construction was then raised on it. On 17.08.2014, a panchayat
was convened between the parties wherein the defendants were asked
to restore possession of the suit property but in vain.
9. Admittedly, the suit property was previously owned by one
Smt. Gendi which has not been disputed by defendants No.2 and 4 as it
is their own case that Ajaib Singh, father of Tarsem Singh had
purchased it from Gendi in the year 1985 and thereafter Tarsem Singh
son of Ajaib Singh had sold it to them. Defendants No.2 and 4 in
support of their case have heavily relied upon an agreement between
Gendi and Ajaib Singh, father of Tarsem Singh, however, the said
agreement is just a photocopy of the original agreement alleged to have
been executed by Gendi in favour of Ajaib Singh. The said agreement
was admittedly an unregistered agreement which was not even
exhibited during trial but placed on record as Mark-P. Hence, it would
be inadmissible in evidence for want of proof. Similarly, much reliance
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was placed upon Ex.D1 and Ex.D10, however, even they being
unregistered documents cannot be taken into consideration. Besides the
abovesaid unregistered agreement no other documentary evidence was
tendered by defendants No.2 and 4 in support of their case that Tarsem
Singh, son of Ajaib Singh was owner of the said property. It would also
be pertinent to observe that the plaintiff had filed a suit prior to the suit
in question seeking permanent injunction to injunct defendant No.1
Kuldeep Singh and his brother Tarsem Singh from interfering in his and
in the possession of the proforma defendants over the suit property
which came to be decreed on 02.04.2014 vide judgment Ex.P8. No
doubt, defendants in the suit for permanent injunction were proceeded
against ex-parte, however, since no application for setting aside the ex-
parte order was moved by them, as a result thereof the judgment dated
02.04.2014 attained finality. Therefore, in the absence of anything to
the contrary on record, it leaves no manner of doubt that on 02.04.2014
the plaintiff and the proforma defendants were in possession of the
property and it was only thereafter that they were dispossessed.
10. As far as the reliance placed upon electricity bills Ex.D2 to
D8 and D10 to D18 is concerned, these too would be of no avail to
defendants No.2 and 4, as no official from the electricity department
was examined to prove the electricity connection installed in the suit
property.
11. Upon being pointedly asked, learned counsel for the
appellants failed to refer to anything on record to show that the
conclusions so arrived at by the Courts below were either contrary to
the record or suffered from any material illegality. Still further, no
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question of law, much less, substantive arises for consideration in the
present appeal. The appeal, being devoid of merit, is accordingly
dismissed. The judgments and decrees of the Courts below are
affirmed.
25.03.2022 (MANJARI NEHRU KAUL)
Vinay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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