Gahara Ram vs Bhagirath And Ors
2023 Latest Caselaw 8767 P&H

                            RSA No.4514 of 2017                    -1-                  2023:PHHC:079615

                             IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                            228                                     RSA No.4514 of 2017 (O&M)
                                                                    Reserved on : 11.05.2023
                                                                    Date of Decision : 01.06.2023


                            Gahara Ram                                                         ....Appellant

                                                               VERSUS

                            Bhagirath and Others                                           ....Respondents


                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                            Present :    Mr. Manish Mehta, Advocate for the appellant.


                            ALKA SARIN, J.

1. The present appeal has been preferred against the judgments

and decrees dated 19.10.2012 and 16.11.2016 passed by the Courts below

dismissing the suit filed by the plaintiff-appellant.

2. The brief facts relevant to the present lis are that the plaintiff-

appellant filed a suit for permanent injunction against the defendant-

respondents for restraining them from causing any interference towards the

south courtyard and right of ingress and egress and not forcibly raise any

construction or cause hinderance from using the common path, road to the

said courtyard. It was claimed that the plaintiff-appellant was owner in

possession of a house in village Gothri, Tehsil Narnaul and had been

residing there since the last 60-65 years. The courtyard to the south of his

house was being used by the plaintiff-appellant for tethering cattle and

storing firewood and even the mori, parnala, windows, ventilators and door

of his house opened in the said courtyard. It was alleged that the defendant- JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and integrity of this order/judgment.

Chandigarh
                             RSA No.4514 of 2017                    -2-                   2023:PHHC:079615

respondents intended to encroach upon the suit property and if they

succeeded then the plaintiff-appellant shall suffer irreparable loss and injury.

Hence, the suit. In the written statement the defendant-respondents raised

preliminary objections regarding maintainability, cause of action, locus

standi, concealment of true and material facts. On merits it was submitted

that the plaintiff-appellant was not the owner in possession nor his

forefathers had any concern with the suit property. The defendant-

respondents claimed that they were owners in possession since the time of

their forefathers and had been residing therein and had built a surrounding

wall and constructed one chappar, tin shed etc. where they also tethered their

animals.

3. The Trial Court framed the following issues :

1. Whether the plaintiff is entitled to the relief of

injunction as prayed for ? OPP

2. Whether the suit is not maintainable in the present

form ? OPD

3. Whether the plaintiff has no cause of action and

locus standi to file the suit ? OPD

4. Whether the plaintiff has not come in the court

with clean hands ? OPD

5. Whether the plaintiff is estopped from filing the

suit by his own act and conduct ? OPD

6. Relief.

4. On the basis of the pleadings of the parties and the evidence on

the record, the Trial Court dismissed the suit of the plaintiff-appellant vide

judgment and decree dated 19.10.2012. The Trial Court inter-alia found that JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and the plaintiff-appellant had failed to prove his possession over the suit integrity of this order/judgment.

Chandigarh
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property. Aggrieved by the decision of the Trial Court, an appeal was

preferred which appeal was also dismissed vide judgment and decree dated

16.11.2016. Hence, the present regular second appeal.

5. Learned counsel for the plaintiff-appellant would contend that

the Courts below have erred in dismissing his suit for permanent injunction

and that the possession of the plaintiff-appellant over the suit property was

established by the evidence on the record.

6. I have heard learned counsel for the plaintiff-appellant.

7. In the present case both the Courts below have concurrently

found that the plaintiff-appellant had failed to prove his ownership or

possession over the suit property. Even the deposition of the witnesses of the

plaintiff-appellant did not establish the case set-up by the plaintiff-appellant.

Learned counsel for the plaintiff-appellant has not been able to point out any

clinching evidence to prove the exclusive possession of the plaintiff-

appellant over the suit property. In a suit filed under Section 38 of the

Specific Relief Act, 1963, permanent injunction can be granted only to a

person who is in actual possession of the suit property. The burden of proof

lies upon the plaintiff to prove that he was in actual and physical possession

of the suit property on the date of suit. The possession of the plaintiff cannot

be based upon inferences drawn from circumstances. The plaintiff has to

prove actual possession for grant of permanent injunction. In the present

case once his possession is not established, there is no occasion for grant of

any injunction in favour of the plaintiff-appellant.

8. In view of the above, I do not find any illegality or infirmity in

the judgments and decrees passed by both the Courts below. The concurrent

findings of fact recorded by both the Courts below do not call for any JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and interference by this Court. No question of law, much less any substantial integrity of this order/judgment.

Chandigarh
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question of law, arises in the present case. The appeal, being devoid of any

merit, is accordingly dismissed. Pending applications, if any, also stand

disposed off.

Whether reportable: YES/NO

JITENDER KUMAR 2023.06.01 15:19 I attest to the accuracy and integrity of this order/judgment.

Chandigarh