Rachpal Kaur vs State Of Punjab And Others
2024 Latest Caselaw 9348 P&H

Punjab-Haryana High Court

Rachpal Kaur vs State Of Punjab And Others on 1 May, 2024

                                     Neutral Citation No:=2024:PHHC:059410




       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH
                           ****
                                       RSA-1268-1993 (O&M)
                                       Reserved on:24.04.2024
                                    Pronounced on: 01.05.2024
                                                                  2024:PHHC: 059410
RACHHPAL KAUR
                                                                . . . . APPELLANTS
                         Vs.
STATE OF PUNJAB AND OTHERS
                                                               . . . . RESPONDENTS
                                ****
CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
                                ****
Argued By:- Mr. Ashwani Kumar Chopra, Sr. Advocate, with
           Mr. Brahmjot Singh Nahar, Advocate, for the appellant.

             Mr. Sahil R. Bakshi, AAG, Punjab.

                                        ****
DEEPAK GUPTA, J.

This Regular Second Appeal is directed by the plaintiff of the

case, whose suit for permanent injunction regarding suit property was decreed

by the trial Court, but the appeal of the defendants was accepted, resulting in

dismissal of the suit.

2. Trial Court record was called and the same has been perused. In

order to avoid confusion, parties shall be referred to as per their status before

the ld. Trial Court.

3. Case of the plaintiff (appellant herein) is that she is owner of

land comprised in Khasra No.33 (0-6) and 34(0-6) of Rectangle No.80,

situated at Adda Nadala, Tehsil Kapurthala, by virtue of sale deed dated

20.09.1974 (copy Ex.P1), on which land, she raised construction on a

building. Apprehending dispossession from the said property, plaintiff prayed

for a decree for permanent injunction against the defendants (respondents

herein).

4. Defendants, in their written statement, did not dispute either the

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ownership of the plaintiff in respect of the suit property or the fact that a

building exist thereon as raised by the plaintiff but according to the

defendants, plaintiff had encroached upon adjoining Government property

comprised in Khasra No.236. It was also the case of the defendants that

ejectment order against the husband of the plaintiff had already been passed

by the competent authorities and that writ petition filed by the plaintiff's

husband was dismissed by this High Court and so, the suit was barred by

principle of res judicata.

5. Following issues were framed for adjudication: -

(1) Whether the plaintiff is the owner in possession of the property in dispute? OPP (2) Whether the present suit is barred by the principle of res judicata?

OPD (3) Whether the present suit is not maintainable? OPD (4) Whether the civil Court has no jurisdiction to try this case? OPD (5) Whether notice u/s 80 CPC has not been served upon the defendants? OPD (6) Relief.

6. Trial Court disposed of issues No.2 to 5 as not pressed for;

whereas, issue No.1 was decided in favour of the plaintiff. Decree for

permanent injunction was accordingly directed to be passed by way of

judgment dated 31.10.1991.

7. However, in the appeal filed by the defendants, the First

Appellate Court vide its judgment dated 14.02.1992 held that plaintiff had

failed to prove her title or possession over the suit property, as only the

photocopy of the sale deed had been produced and the revenue record was not

tendered in evidence. Besides, in Jamabandi available on record, plaintiff was

only the co-sharer in khasra No.33 & 34; that plaintiff had not appeared in the

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witness-box and that ejectment order of husband of the plaintiff Joginder

Singh had already been passed by the Court of Exclusive Jurisdiction, which

had been upheld in appeal and the writ petition filed by the Joginder Singh,

the husband of the plaintiff was dismissed. As such, the finding on issue No.1

was reversed. The Appellate Court also held that suit was not barred by

principle of res judicata, though documents Ex.DA to DC pertaining to

previous litigation qua the husband of the plaintiff, may be relevant.

Consequent to the finding on issue No.1, the suit of the plaintiff was

dismissed.

8. Assailing the aforesaid finding of the appellate Court, plaintiff

contends that the First Appellate Court, committed grave error by ignoring the

well settled legal proposition that admission is the best evidence and that

defendants specifically admitted the ownership as well as possession of the

plaintiff over the property in dispute. It is further contended that judgment in

personam qua the husband of the plaintiff, in which plaintiff was not a party,

is not binding on her. Not only this, the First Appellate Court ignored the

admission made by the witnesses of the defendants to the effect that there was

no encroachment on the part of the plaintiff on the Government road. Prayer is

made for setting aside the impugned judgment and decree passed by the ld.

First Appellate Court and to restore that of the trial Court and decree the suit.

9. Ld. State counsel for the respondents has opposed the prayer and

defended the impugned judgment of the First Appellate Court.

10. I have considered submissions of both the sides and perused the

record.

11. It is in para No.1 of the plaint that it was pleaded by the plaintiff

that she is owner in possession of a building situated at Adda Nadala, District

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Kapurthala, as per details given in this para, comprised in Killa No.33 (0-6)

and 34 (0-6) of Rectangle No.80 of Village Nadala by virtue of purchase from

one Harnam Singh vide sale deed dated 20.09.1974. The corresponding para

of the written statement filed by the defendants would reveal a clear admission

on their part to the effect that plaintiff is the owner of the suit land and the

building constructed thereon, though they denied the sale deed dated

20.09.1974 for want of knowledge.

12. Here itself, it may be noted that DW1 Kuldip Singh Saini, SDO

PWD, Kapurthala, examined on behalf of the defendants, categorically

admitted that Punjab State i.e. defendants had no concern with Killa Nos.33 &

13. Once the defendants had categorically admitted that plaintiff

was the owner of the land comprised in Khasra Nos.33 & 34, on which she

had raised the construction of a building, there was no question to doubt the

title of the plaintiff in this regard simply for the reason that only the copy of

the sale deed was produced and not the original sale deed.

14. The only issue involved in the case is as to whether plaintiff has

encroached upon any portion of adjacent Khasra No.236 belonging to the

defendants, as is alleged by them. Since it is the defendants, who alleged

encroachment on the part of the plaintiff/her husband in khasra No.236, which

admittedly is situated adjacent to the property of the plaintiff, so onus was

upon the defendants to prove the same. Perusal of the record would reveal that

defendants utterly failed to discharge this onus or to prove any encroachment

on the part of the plaintiff.

15. Perusal of the trial Court record would reveal further that vide

an order dated 30.01.1989 by Ld. Trial court, Naib Tehsildar, Halka Bholath

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was appointed as Local Commissioner to demarcate the suit property and take

its measurement. PW2 Jeet Ram, Naib Tehsildar, Phagwara, proved his report

Ex.P2 along with the site plan of the spot as Ex.P3 prepared by him and

testified that there was no encroachment on the part of the plaintiff of the

road. There is no serious cross-examination to this witness except to the

suggestion that he had not visited the spot or that he had prepared a wrong

report. These suggestions were denied by the witness.

16. DW1 Kuldip Singh Saini, SDO PWD, Kapurthala, referred to an

ejectment order Ex.DA dated 25.11.1985 passed by SDO (Civil), Kapurthala,

in a case titled 'State Vs. Joginder Singh', as per which there was an

encroachment to the extent of 30' x 5' in Khasra No.236 (7-18) and said

Joginder Singh was ordered to be evicted from that encroached portion.

Appeals filed by said Joginder and other similarly placed persons were

dismissed by Commissioner, Jalandhar Division, Jalandhar vide order dated

09.04.1986 (Ex.DB). Joginder Singh, who is admittedly the husband of the

plaintiff, approached this Court by filing suit writ petition No.3945 of 1996,

but the same was dismissed on 18.01.1988 (Ex.DC). It is admitted by the

defendants that plaintiff Richhpal Kaur was not a party to the litigation, in

which orders Ex.DA to DC were passed. It is for this reason that even the First

Appellate Court held that though these documents may be relevant, but are not

binding on the plaintiff and so, the suit was not barred by the principle of res

judicata.

17. Be that as it may, as per Ex.DA portion of Khasra No.236 to the

extent of 30'x5' had been encroached upon. However, no such stand has been

taken by the defendants in the written statement of this case. Except Ex.DA to

DC, no evidence whatsoever, has been produced to show encroachment on the

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part of the plaintiff and in case there is any encroachment as alleged, then as

to which portion of Khasra No.236 has been encroached upon by her. DWI

Kuldip Singh Saini, SDO PWD, Kapurthala admitted in his cross-examination

that there is no ejectment decree against plaintiff-Rachhpal Kaur. He further

stated that he was posted in Kapurthala in 1988 and so, could not say as to

whether the building of the plaintiff existed since 1974.

18. Another witness examined by the defendants DW2 Roshan Lal

Kanungo, PWD B&R, who proved copy of aksh shajra as Ex.DW2/1,

admitted that he never conducted any demarcation of the site in dispute. He

further stated that shops adjoining to the road are pucca construction and he

cannot say as to when those were constructed. He is even unable to tell as to

when the building was constructed by the plaintiff-Rachhpal Kaur. He pleaded

ignorance about existence of a drain adjacent to the house of plaintiff and

others. Though, he also states that encroachment is to the extent of 5 or 7 feet

in width and 71 feet in length, but is unable to tell about that encroached

portion and also stated that he was stating about this encroachment because of

his personal knowledge and had not conducted any demarcation. The area of

alleged demarcation a stated by him is quite different from the area mentioned

in Ex.DA.

19. Not only this, in later part of his cross-examination, DW2

admitted existence of a street drain along with the road existing in the front of

pucca building of the plaintiff. He further admitted that said drain was

constructed by the PWD. He further stated that he did not feel any necessity

to get the disputed land demarcated from any other agency, as he himself was

the patwari of the department. According to him, he had undertaken

demarcation work at the spot in order to find out the encroachment over the

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property and had submitted the report to the higher authority, but no such

demarcation/encroachment report was submitted in this case.

20. It is evident from the aforesaid evidence that except for the

demarcation report Ex.P1, prepared by the Local Commissioner appointed by

the Court, there was no other evidence on the file so as to prove the alleged

encroachment on the part of the plaintiff. Although demarcation, as per DW2,

had been earlier conducted, but no such report was ever filed in this case.

Defendants did not take any step for getting the demarcation conducted or to

rebut the evidence of PW2 in respect of his demarcation report, as per which

there was no encroachment on the part of plaintiff.

21. Consequent of the above discussion, finding on issue No.1 by ld.

First Appellate Court cannot be sustained. The said finding is reversed. It is

held that ld. trial Court had rightly decided issue No.1 in favour of the plaintiff

by holding that she was owner in possession of the property in dispute. It is

further held that trial Court had rightly decreed the suit, as defendants failed to

prove any encroachment on the part of the plaintiff.

22. Consequently, the present appeal is allowed with costs. The

impugned judgment and decree dated 26.03.1993 passed by the First

Appellate Court is hereby set aside. The judgment and decree dated

31.10.1991 of the ld. trial Court is hereby restored, whereby suit of the

plaintiff - appellant was decreed. Decree sheet be prepared accordingly.

Pending application(s), if any, also stand disposed of.

                                                            (DEEPAK GUPTA)
01.05.2024                                                      JUDGE
Vivek
                Whether speaking/reasoned?            Yes
                Whether //reportable?                 No





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