Punjab-Haryana High Court
Pb.Wakf Board vs Sh.Nand Lal on 3 April, 2024
Neutral Citation No:=2024:PHHC:045773
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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RSA-1841-1992 (O&M)
Reserved on : 21.03.2024
Pronounced on: 03.04.2024
2024:PHHC: 045773
PUNJAB WAKF BOARD
. . . . APPELLANT
Vs.
NAND LAL THROUGH HIS LRS
. . . . RESPONDENTS
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Argued By:- Mr. G.S. Bhatia, Advocate
for the appellant.
Mr. Manoj Makkar, Advocate,
for the respondent.
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DEEPAK GUPTA, J.
This Regular Second Appeal is directed against the judgment
and decree dated 25.05.1992 of the First Appellate Court, dismissing the
appeal filed by the plaintiff - Punjab Wakf Board (now appellant) against the
judgment and decree dated 30.08.1991 of the trial Court, whereby suit filed by
plaintiff board for possession of suit property against defendant-Nand Lal
(now respondent) was dismissed. Thus, this RSA is against concurrent
judgments of the courts below, dismissing the suit of the plaintiff.
2. Trial Court record was called. Same has been perused. In order
to avoid confusion, parties shall be referred as per their status before the trial
Court.
3.1 According to the plaintiff-Punjab Wakf Board, it is owner of a
property bearing no.B-VI, 1010-B - 41/30 situated in Rohtak, which is a Wakf
Property with area 93½ x 71½ feet equivalent to 758 sq. yards approximately.
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Said property was transferred in the plaintiff-Punjab Wakf Board in the year
1960-61 by Central Government through custodian. Said property was earlier
in the shape of a house and was rented out to Ram Pyara Mal and Ram Lal
sons of Late Sh. Sohna Ram, who used to pay rent to the plaintiff against rent
receipts issued by Rent Controller, Rohtak. After the death of these tenants i.e.
Ram Pyara Mal and Ram Lal, the property was illegally occupied by Shri Hari
Ram son of Ralla Ram, Devki Chand son of Gurditta Mal, Ram Ashra son of
Ram Piara Mal, Bhagwan Dass son of Ram Lal and present defendant Nand
Lal. These five persons demolished the earlier existing house and partitioned
amongst themselves the said property without the knowledge or consent of the
plaintiff Board. They started raising construction illegally by collecting
building material on the portions as partitioned amongst themselves,
compelling the plaintiff-Punjab Wakf Board to file suit for permanent
injunction against these five persons including the defendant in the Court of
ld. Sub Judge, First Class, Rohtak.
3.2 During the pendency of above suit No.880 of 1983, Shri Hari
Ram, Devki Chand, Ram Ashra and Bhagwan Dass approached the plaintiff
Board and made separate applications admitting the title of the plaintiff and
desired to become tenants under the plaintiff. These four persons became
tenant on the respective portions on the monthly rent of `25/- each. However,
defendant neither approached the plaintiff so as to become the tenant nor
agreed to pay the rent and kept on illegally possessing the portion shown by
red Colour in the attached plan marked with letter 'A'. He raised construction
thereon with old material of the Punjab Wakf Board house. According to the
plaintiff, the possession of the defendant is illegal as a trespasser and that
plaintiff is entitled to recover `200/- per month for use and occupation of the
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Board property and also to take possession thereof.
With above averments, plaintiff-Punjab Wakf Board prayed for
a decree of possession over the suit property and also decree for recovery of
`100/- per month for use and occupation.
4. Defendant in his written statement denied that the property
under his possession is part of the property belonging to the plaintiff, although
he admitted that property under his possession is adjacent to the property
vesting in the Punjab Wakf Board, which had been earlier let out to Ram
Pyara Mal and Ram Lal. Defendant admitted about the earlier suit, which was
filed by the plaintiff and alleged that the same was filed on false and baseless
grounds against him. He disputed the correctness of the site plan relied by the
plaintiff. Defendant further claimed that he was in possession of the property
by virtue of a purchase from Trust Mahant Gurmukh Singh Ji, registered at
Rohtak, which he purchased along with his son and widow of another son. He
also pleaded that he had spent approximately `50,000/- on raising
construction. Denying any right of the plaintiff-Punjab Wakf Board in the suit
property under his possession, defendant prayed for dismissal of the suit.
5. Following issues were framed for adjudication: -
1. Whether the plaintiff is owner of the suit property? OPP.
2. If issue No. 1 is proved whether the plaintiff is entitled to the
relief of possession as alleged? OPP.
3. Whether the suit is bad for mis-joinder of parties? OPD.
4. Whether the plaintiff is estopped from filing the present suit?
OPD.
5. Whether the defendant is entitled to special compensatory
cost? OPD,
6. Relief.
6. Evidence led by the parties was taken on record. Ld. trial Court
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held the plaintiff-Punjab Wakf Board to be owner of the suit property under
issue No.1. Plaintiff was held entitled to the possession of the suit property
under issue No.2. The finding on issue No.3 went against the defendant by
holding that suit was not bad for misjoinder of necessary parties. However,
issue No.4 was decided in favour of the defendant by holding that plaintiff-
Punjab Wakf Board was debarred from seeking relief of possession under
Order 2 Rule 2 CPC, inasmuch as the earlier suit filed by the plaintiff against
defendant-Nand Lal had been dismissed as withdrawn qua him without
seeking any permission. Finding on issue No.5 went against defendant.
Consequent to these findings, particularly the finding on issue No.4 i.e. suit
being barred under Order 2 Rule 2 CPC, the suit was dismissed vide judgment
dated 30.08.1991.
7. Aggrieved by the aforesaid judgment and decree, plaintiff filed
appeal challenging the finding on issue No.4. Upon notice, the respondent-
defendant filed cross-objections challenging the finding of the trial Court on
issues No.1 to 3 & 5. The appeal filed by the plaintiff Board as well as Cross-
objections filed by the defendant were heard together by the First Appellate
Court. The findings of ld. Trial Court on issues No. 1 and 2 were reversed.
These issues were decided against the plaintiff-Punjab Wakf Board by holding
that it had failed to prove its title over the suit property and so, was not
entitled to the possession thereof. The finding on issue No.4 returned by the
trial Court was affirmed. Consequently, the appeal filed by the plaintiff was
dismissed; whereas cross-objections were partly allowed vide judgment and
decree dated 25.05.1992.
8. Against the aforesaid judgment and decree of the First Appellate
Court, the plaintiff has approached this Court by way of present Regular First
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Appeal.
9. It is contended by Ld. Counsel that the First Appellate Court
acted with material irregularity reversing the well reasoned finding of the trial
Court on the point of ownership of the plaintiff and wrongly held that sale
deed Ex.D11 was not correctly considered by the trial Court. Still further, it is
contended that the earlier suit filed by the plaintiff was a simplicitor suit for
permanent injunction and therefore, simply because that suit was dismissed as
withdrawn qua the defendant, could not be a bar for claiming possession in the
subsequent suit based on title and so, the Court below erred in deciding issue
No.4 in favour of the defendant by misreading Order 2 Rule 2 CPC.
10. Refuting the contentions as aforesaid, written submissions have
been filed on behalf of the respondent-defendant and it is contended that
finding of the First Appellate Court to the effect that suit property under the
possession of the defendant was not part of the property bearing B-VI 1010-B-
41/30 and rather, it is the part of B-VI 1010-A, is a finding of fact and the
same cannot be interfered with by this Court in Regular Second Appeal.
11. I have considered submissions of both the side and have
appraised the record.
12. A perusal of the trial Court would reveal that during pendency
of the suit, plaintiff Board had moved an application for appointment of Local
Commissioner so as to measure the area in possession of the defendant. Said
application was allowed and the Local Commissioner, a retired Kanungo, was
appointed, who submitted his report dated 20.11.1990. It is by making
reference to this report of the Local Commissioner that trial Court had held
the property under the possession of the defendant was part of B-VI 1010-B
owned by the plaintiff-Punjab Wakf Board.
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13. While upsetting the aforesaid finding, ld. First Appellate Court,
held as under: -
"15. After giving careful thought to the rival submissions of the learned counsel
for the parties, I am of the view that the deciding factor for learned trial court on
the question as to whether the disputed property is part of plot No. B-VI-1010-
B, is the report of local commission. The report of local commission is dated
20.11.90. I have gone through it. The fact that the local commission has given
the site plan of the property and shown in the same the property in possession of
Nand Lal to be bound by the property of Ram Bhaj on the north cannot be made
the basis for the finding that the property No. B-VI.1010-B. The local
commission was appointed on the specific request and under specific orders
from the court to measure the property in possession of the defendant because
plea of the plaintiff in the application was that besides being in possession of
150 Sq. yards of land purchased from Mehant Gurmukh Singh Ji Trust, the
defendant has in his possession land measuring 300 Sq. yards, which includes
the property of the plaintiff. The local commission vide his report has found the
possession of the defendant only over land measuring 189 2/9 sq. yards. Vide
Ex.D1, the defendant, his son and his son's widow have purchased 188 sq. yards
of land, which is admitted by the plaintiff in the application for appointment of
local commission, although giving the area so purchased to be 150 sq. yards.
16. When the local commission has not measured the portion in possession
of Hari Ram and others, which is quite evident from the sketchy remarks about
the same in the report, it cannot be said that the portion shown red with letter 'A'
in the site plan is a portion of property No. B-VI.1010-B and is not the property
originally owned by Wakf Board and coming to the defendant through Mehant
Gurmukh Singh Ji Trust.
17. Thus, the findings of learned trial court on issue No. 1 to the effect that the
plaintiff is owner of the suit property cannot be sustained and the same is set
aside and the plaintiff cannot be held entitled to possession thereof."
14. The abovesaid finding returned by the ld. First Appellate Court
is clearly a finding of fact and so, cannot be interfered by this Court in the
second appeal. No substantial question of law is found to be involved in the
present appeal. It has been held by Hon'ble Supreme Court in Avtar Singh
Vs. Bimla Devi, 2021(13) SCC 816 that Section 41 of the Punjab Courts Act,
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1918 (for short, `the 1918 Act') continues to be in force and not Section 100 of
the Code of Civil Procedure in the States of Punjab and Haryana. Under
Section 41 of the 1918 Act, the substantial question of law is not required to
be framed and that concurrent findings of the facts, cannot be interfered with
howsoever erroneous, gross or inexcusable the error may seem to be. These
findings of fact include findings based on documentary evidence. Jurisdiction
to interfere in the second appeal under Section 41 of the 1918 Act can be
invoked only, where there is an error in law or procedure and not merely an
error on a question of fact. Hon'ble Supreme Court held further that High
Court could not interfere with the findings of fact recorded after appreciation
of evidence merely because the High Court thought that another view would
be a better view. Mere findings of fact cannot be interfered with in exercise of
second appellate jurisdiction available under Section 41 of the 1918 Act.
15. As a result of above discussion, this Court does not find any
merit in the present appeal, as no substantial question of law is found to be
involved. Once it has been found that plaintiff is unable to prove its title over
the suit property, so obviously, it is not entitled possession thereof.
Dismissed.
Pending application(s), if any, also stand disposed of.
(DEEPAK GUPTA)
03.04.2024 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? No
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