Punjab-Haryana High Court
Sukhdev Singh vs Dhan Dhan Bapu Kumbh Dass Ji And Others on 24 January, 2025
Neutral Citation No:=2025:PHHC:011070
Page 1 of 16
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
113 RSA-2205-2022 (O&M)
Date of decision: 24.01.2025
Sukhdev Singh
...Appellant(s)
Vs.
Dhan Dhan Bapu Kumbh Dass Ji & Others
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr.R.P. Dhir, Advocate
for the appellant.
Mr. Divanshu Jain,, Advocate with
Mr. Minkal Rawal, Advocate
Mr. Abhinav Goel, Advocate
Mr. Arjun Sangwan, Advocate
for the respondent.
***
NIDHI GUPTA, J.
The defendant No.1 is in second appeal before this
Court against the concurrent findings of the learned Courts below
whereby the suit of the plaintiffs/respondent
respondents No.1 and 2 herein, for
permanent injunction restraining the appellant/defendant No.1 from
illegally and forcibly:
forcibly a) causing any obstruction
obstructions in functioning of
Management Committee of Respondent; b) Interfering into the lawful and
peaceful and exclusive possession of plaintiff in the property marked as
ABCD shown as 'red' in colour in the site plan attached with the plaint,
measuring 14 Marlas bearing Khata No. 154/222, Khasra No. 18/16/4(0
18/16/4(0-
14), village Garhi, Tehsil Garhshankar (hereinafter 'The Suit Property')
Property');
c)demolishing
demolishing the existing constructions existing over the suit property,
has been decreed.
1 of 16
Neutral Citation No:=2025:PHHC:011070
2. The parties shall hereinafter be referred to as per their
status before
efore the learned trial Court i.e. the appellant as 'the defendant
no.1' and the respondents as 'the plaintiffs'.
3. The brief facts of the case as put forth in the plaint are
that the plaintiff No.1 is a juristic person being the registered Management
Committee managing the affairs of plaintiff No.1. Surinder Pal Verma is the
President and Paramjit is the Vice President of the said Committee.. Vide
resolution dated 11.10.2009 passed by the Management Committee, the
President and Vice President were authorized to file the suit on behalf of
plaintiff No.1. It was the pleaded case of the plaintiffs that the plaintiffs are
in exclusive possession as owners/co-sharers
sharers in land measuring 0-14 marlas
and marked as ABCD shown in read colour in the site plan measuring 14
marlas bearing Khata No.154/222, Khasra Nos.18//16/4 (0
(0-14) as per
Jamabandi for the year 2006-07situated
200 situated in the area of village Garhi, Tehsil
Garhshankar the suit property. On the suit property, there are two rooms
Garhshankar/
kutia and submersible pump constructed and installed by followers of
plaintiff No.1. Religious pooja place (dhoona) is also in existence since the
time of Bapu Kumbh Dass Ji. It was further pleaded that the defendant No.1
is co-sharer
sharer in the land of joint Khata whereas defendants No.2 to 4 are
strangerss and they have no right title or interest in the suit property.
Further averment was made in the plaint that for the last about one week,
the defendants
defendants in connivance with each other were threatening the
plaintiffs through members of the Committee that they will forcibly
2 of 16
Neutral Citation No:=2025:PHHC:011070
interfere into the lawful, peaceful and exclusive possession of the plaintiffs.
The defendants
ndants threatened that they will demolish the existing
constructions and submersible pump and the Dhoona illegally and forcibly.
The said threats of the defendants are wrong, illegal and against law and
facts; and the plaintiffs will suffer irreparable los
losss and injury in case the
defendants succeed. The defendants were asked many times to refrain
from their activities, however, to no avail. With these averments, the suit
was filed.
4. Upon notice, the defendants appeared and filed their
written statement contesting the suit denying the averments made in the
plaint inter alia stating that the plaintiffs have no cause of action to file the
present suit; the plaintiffs had not come to the Court with clean hands; that
under the garb of present suit, plaintiffs want to encroach upon the
common property; plaintiffs had not joined the Gram Panchayat as party;
and the plaintiffs should be directed to produce exact measurement of the
site in dispute;
ute; the Dhoona shown by the plaintiffs in their site plan and the
construction clearly falls within the western rasta which is depicted in the
site plan of the defendants which has been prepared at the spot strictly as
per revenue record with the measurement;
measurement; and in case the version of the
plaintiffs is admitted then the rasta would be blocked; that the submersible
pump also falls within the northern kacha rasta; and therefore, the
defendants have every right to block
bl the illegal move of the plaintiffs who
cannot be allowed to encroach upon the public passage.
3 of 16
Neutral Citation No:=2025:PHHC:011070
5. On the basis of pleading of the parties, following issues
were framed:-
framed:
"1. Whether the plaintiff no.1 is co
co-owner
owner in exclusive
possession of the suit site as detailed and described in head
note of the plaint and shown in the attached site plan? OPP
2. Whether the site plan filed by the plaintiff is correct? OPP
3. Whether plaintiffs are entitled to the relief of permanent
injunction as prayed for? OPP
4. Whether plaintiffs have not come to the court with clean
hands and under the garb of the present suit, they are trying to
encroach upon the passage as depicted in the Aks Shajra and in
the other revenue record? OPD
5. Whether the Gram Panchayat of Villa
Village
ge Garhi Matton is
necessary and proper party and therefore, the suit is bad for
misjoinder? OPD
6. Relief."
6. Upon consideration of the entire oral and documentary
evidence brought on record by the parties, the learned trial Court decreed
the suit in favour of the plaintiffs.
plaintiff Defendants No.1 and 2 went in appeal
before the learned Additional District Judge, Hoshiarpur which was
dismissed vide judgment and decree dated 06.08.2022. Hence, present
second appeal by defendant No.1.
7. Learned counsel for the appellant/defendant
No.1submits
submits that the suit of the respondents/
respondents/plaintiffs has been decreed
on the basis of report dated 01.01.2011 of the Local Commissioner
appointed by Court. It is submitted that even as per the said report (Ex.P1)
it is shown that the illegal construction/Dhoona raised by the plaintiffs
4 of 16
Neutral Citation No:=2025:PHHC:011070
falls in Khasra No.18//16/4 and "half
"half share falls in khasra No.18//16/6 in
the passage".
passage". It is submitted that therefore, in view of this
proven/admitted
/admitted fact it becomes clear, that the plaintiffs have encroached
upon public land i.e. the passage;; and thus, the suit of the plaintiffs could
not have been decreed.
8. It is submitted that as per the report of the Local
Commissioner himself the encroachment being done by the plaintiffs is
proved. The said report could not have been discarded merely on the
basis of an unreliable site plan produced by the plaintiffs. Plaintiffs have
not filed any objections to the said report and in fact PW1 has admitted
the correctness of the report. The version of the plaintiffs in the plaint and
the site plan is that the Dhoona exists only in Khasra No.18//16/4.
However, the report is to the contrary and the correct fact has not been
brought by the plaintiffs before the Courts. LLearned counsel submits that
the pleas off the plaintiffs are inconsistent with the suit version, thereby
falsifying their own pleas.
9. The plaintiff initially in his pleading explained the
position as to khasra No.18//16/4
o.18//16/4 being only comprising of room,
submersible pump and dhuni. However, during course of trial, at the time
of rebuttal, the plaintiff again examined himself in rebuttal alleging that
there was also a rasta left out back in the year 2008 in the afor
aforesaid
khasra number, which is neither originally pleaded nor shown in the site
plan as produced. It does not lie in the mouth of plaintiff to assert
5 of 16
Neutral Citation No:=2025:PHHC:011070
different actual and factual position in plaint and different actual
and factual position at the time of rebuttal,
rebuttal, thereby making his version
inconsistent. It is accordingly prayed that the impugned judgments and
decrees of the learned Courts below be set aside.
10. Per contra, learned counsel for the plaintiffs appearing
on caveat vehemently opposes the submissions
submissions made on behalf of the
appellant/defendant No.1 and submits that the defendant No.1 has no
locus to illegally threaten the plaintiffs. In fact the defendant No.1 himself
has admitted before the learned Courts below that the plaintiffs are the
ownerss of the suit property; that construction of the plaintiffs exists on
the suit property; that the plaintiffs are in exclusive possession of the suit
property; and that the electric connection thereupon is in the name of the
plaintiffs. It is submitted that in view of these admissions the defendant
No.1 is a stranger to the suit property and having no right
right, title and
interest thereupon to illegally threaten the plaintiffs.
11. It is submitted that even assuming that the plaintiffs
are encroachers or have raised illegal construction or have raised
construction beyond the suit property, the plaintiffs cannot be
dispossessed except "in
"in due course of law". It is argued that even
assuming there is any encroachment by the plaintiffs, then it is for the
concerned
d Municipal Corporation to take action against the plaintiffs, if
any. It is submitted that how can the defendant No.1 take action or break
the plaintiffs'
plaintiffs structures on his own. In support of his contentions, learned
6 of 16
Neutral Citation No:=2025:PHHC:011070
counsel relies upon judgments of this Court in "Ravi Chopra Vs. Shri Jajpal
Mahendru" Law Finder Doc ID # 50486; "Kala Singh & Others Vs. Mukesh
Kumar" Law Finder Doc ID # 635390; "Jagga Ram Vs. Rattan Lal &
Others" Law Finder Doc ID # 1468149; "Tara Chand & Others Vs. Siri Pal
& Others" Law Finder Doc ID # 1464727; "Bachan Singh Vs. Swaran
Singh" Law Finder Doc ID # 18843; "Siri Kishan Vs. Dharampal & Others"
Law Finder Doc ID # 122401; "Nahar Singh & Others Vs. Kaka Singh" Law
Finder Doc ID # 18928; and judgment of Hon'ble Supre
Supreme Court in
"Walter Louis Franklin (dead) through LRs Vs. George Singh (dead)
through LRs" Law Finder Doc ID # 35314.
35314
12. No other argument is raised on behalf of the parties.
13. I have heard learned counsel for the parties and
perused the case file in
i great detail.
14. At the very outset it may be pointed out that the
present appeal is of the year 2022 and the same has been adjourned at
request of learned counsel for the appellant/
appellant/defendant No.1 on
28.10.2022, 16.12.2022, 18.04.2023, 02.08.2023, 16.11.2023, 09.02.2024,
12.07.2024, 02.08.2024 and 28.11.2024.
15. Before proceeding to deal with the argument raised by
the appellant/defendant no.1, it may be pointed out that the ownership
and possession of the plaintiff over the suit property is irrefutably
established on record by way of overwhelming evidence. This fact has
been admitted by the defendants themselves in their evidence before the
7 of 16
Neutral Citation No:=2025:PHHC:011070
learned trial court.Perusal
court.Perusal of Jamabandi for 2006
2006-07 shows that the Khata
No. 154/22 is jointly owned
owne by co-sharers
sharers including Defendant no.1, yet
only Plaintiffs are shown to be in exclusive possession of dispute
disputed
property. Further, the Defendants admitted the construction of Plaintiff
over the suit property;
property DW1 Sukhdev Singh admits in cross
cross-examination
that the Dhoona is present at the disputed property
property; DW1 further admits
that Bapu Kumbh Dass is the owner of the disputed property
property; Also, admits
that the mutation sanctioned in favour of Plaintiff in Jamabandi for 2006
2006-
07 pertaining to disputed
dispute property is correct
correct; DW1 again admits in cross-
examination that the Plaintiff purchased the dispute
disputed property and that
the Plaintiff is a registered society. Even DW2 Dhani Ram admits that the
disputed property was purchased by Bapu Kumbh Dass. Further PW4
Kashmiri Lal proved on record Ex. PW4/A the Electricity Bill regarding the
suit property in the name of Surinder Pal Verma, President of Society Baba
Kumbh Dass. No doubt, Defendant no.1 is a co
co-sharer in the joint Khata
but that would not vest any right in the Defendant
Defendants to interfere in the
peaceful possession of Plaintiff over the suit property. Thus, the Ld. Trial
Court rightly decreed the suit on 14.10.2016 on the basis of the above
evidences restraining the Defendants from illegally and forcefully
interfering in functioning of Plaintiff Committee, dispossessing the Plaintiff
from suit property or demolishing construction of Plaintiff, except in due
course of law.
8 of 16
Neutral Citation No:=2025:PHHC:011070
16. The main crux of the arguments advanced on behalf of
the defendant No.1 is that the plaintiffs had filed the present suit seeking
permanent injunction only with regard to the suit property existing in
Khasra Nos.18//16/4 (0-14);
(0 however, as per the report of Local
Commissioner (Ex.P1) it has
has been informed that the half share of the
construction raised by plaintiffs/Dhoona falls in ""Khasra No.18//16/6 in
the passage".
passage" It has been contended that thus, the encroachment on part
of the plaintiffs is proven.
17. At first blush, the said argument of the appellant
appears to be appealing however, upon a detailed perusal of the record
the same is borne out to be incorrect.
incorrect Firstly, as per the report of Local
Commissioner (Annexure
( P1)) half portion of Dhoona is in Khasra no.
18//16/4
16/4 and remaining half is in Khasra 18//
18//16/6 which is passage owned
by Gram Panchayat (and not by Defendant against whom injunction is
sought). Further,
Further the Plaintiff has brought on record resolution dated
06.11.2008 (Ex. PA) whereby two Karam wide land was given by Darshan
Kaur to Plaintiff for the purpose of passage.
18. In regard to the above facts, I refer to the findings as
recorded by the learned Lower Appellate Court in p
paras 15 and 18 of the
impugned judgment and decree dated 06.08.2022 which reads as follows:
"15.
15. I have gone through the record. PW
PW-1 Surinder Pal
Verma, President of Plaintiff No.1 society made statement
proving averments of the plaint. His this version find
corroboration from the oral testimony of PW
PW-2 Dhani Ram
9 of 16
Neutral Citation No:=2025:PHHC:011070
and PW-33 Lakha Singh who are followers of the plaintiff No.
1. The plaintiffs
iffs further brought on record copy of rresolution
dated 11.10.2009 Ex.P1 whereby plaintiff No.1 Society has
authorized its President Surinder Pal Verma and Vice
President Paramjit to institute and prosecute this suit. Ex.P
Ex.P2 is
site plan of the suit propertyy as shown red in colour which is
in possession of the plaintiffs. Ex. P3 is copy of jamabandi for
the year 2006-07
07 of land measuring 26 kanals 7 marlas
showing that plaintiffs No.1 and 2 and defendant No.1 are co
co-
sharers in joint khata bearing No. 154/220
154/220. However,
plaintiffs No. 1 and 2 are recorded in exclusive possession of
Khasra No.18//16/4(0-14)
14) i.e. the suit property. The plaintiff
also brought on record copy of resolution dated 06.11.2008
Ex. PA whereby two karam wide land was given by Darshan
Kaur to plaintiff for the purpose of passage.
XXX
18. DW-11 Sukhdev Singh stated in his cross examination that
Bapu Kumbh Dass Ji is owner of the suit property; the total
land is 26 kanals 7 marlas wherein plaintiffs are recorded as
co-sharers; except plaintifff No. 1 there is no other committee
to run the institution out of above said khasra number, land
measuring 14 marlas is in possession of the plaintiff; towards
eastern side of the Bohli there is a submersible pump and
electricity connection has been got in
installed by the plaintiff
society. So, from this statement of DW
DW-1 Sukhdev Singh,
defendant No. 1 also it is clear that the plaintiffs are in settled
exclusive possession over the suit property being co
co-sharers.
The plaintiffs also brought on record bill/le
bill/ledger Ex.PW4/A
regarding installation of electricity connection in the suit
property, which has been proved by DW
DW-1. As the plaintiffs
are in settled exclusive possession of the suit properly being
10 of 16
Neutral Citation No:=2025:PHHC:011070
co-sharers,
sharers, they are entitled to protect their possession
against
gainst illegal and forcible dispossession. Although,
defendant No. 1 is a co-sharer
sharer in the joint khewat, but, he has
no right to interfere in exclusive settled possession of the
plaintiffs over the suit property, illegally and forcibly except in
due course of law. The remedy available with them is to seek
partition of the suit joint land. So far as report Ex. D1 of the
Local Commissioner is concerned, the same is of no avail to
the defendants because it is not the case of removal of
encroachment. Through this
is suit the plaintiffs have sought
simple relief of injunction against illegal and forcible
dispossession except in due course of law. Therefore, the
learned lower court has rightly held that the plaintiffs are
entitled to injunction as prayed for. Thus. no ground is made
out to interfere in the findings returned by the learned lower
court
urt on the above said issues and the same are affirmed and
upheld."
(Emphasis added)
19. From the above it is clear that as per the Resolution
dated 06.11.2008 (Ex.PA) even
even the passage land was gifted to the plaintiffs
by Darshan Kaur. As such, strictly speaking, it cannot be said that there is
any 'encroachment
encroachment' by the plaintiffs. Even otherwise, as has correctly
been observed by the learned Additional District Judge Hoshiarpur that as
far as the report of the Local Commissioner is concerned, the same is not
relevant as the present case is not of removal of encroachment rather an
injunction is being sought against the illegal and forcible dispossession of
the defendants
defendant "exceptin
in due course of law".
11 of 16
Neutral Citation No:=2025:PHHC:011070
20. Furthermore, I find merit in the argument advanced on
behalf of the plaintiffs that even assuming, there is any 'encroachment' by
them, even then the defendants have no locus to interfere in the peaceful
possession of the plaintiffs over the suit property. The decree passed in
favour of the plaintiffs
plaintiff only restrains the defendants from
from/ directs that:"It
is therefore ordered
order that the suit of the plaintiff is hereby decreed to the
effect that defendants are restrained themselves or through anybody else
from causing any sort of obstructions in the functions of the Management
Committee of the plaintiff no.1
no. and from interfering into the lawful and
peaceful and exclusive possession of plaintiffs in the property marked as
ABCD shown red in colour in the site plan measuring 14 marlas bearing
Khata no.154/222, Khasra nos. 18//16/4 (0-
(0-14) as per jamabandi for the
year 2006-07
07 situated in the area of Village Garhi, Tehsil Garhshankar and
from demolishing the existing constructions etc. illegally and forcibly
except in due course of law and defendants be restrained from doing so in
future."
21. Thus, the decree passed against the defen
defendants and in
favour of the plaintiffs is for restraining the defendants from causing any
sort of obstruction in the functions of the Management Committee of
plaintiff No.1; and from interfering in the lawful, peaceful and exclusive
possession and from demolishing
demolishing the existing constructions. I find merit in
the submissions made on behalf of the plaintiff that even if it is assumed
for the sake of argument that an encroachment exists upon and beyond
12 of 16
Neutral Citation No:=2025:PHHC:011070
the suit property, the defendants have no authority to take the law in their
hands and seek to demolish the said allegedly illegal construction on their
own. It is for the concerned Municipal Corporation to take action
action, if
required, in accordance with law. It has been forcefully pointed out by
learned counsel for the plaintiffs that the plaintiffs cannot be
dispossessed, or existing constructions be demolished or obstructions
caused in the functioning of the plaintiffs ""except in due course of law".
This is especially so as admittedly, the defendant No.1 has no right, title or
interest in the suit property.
property What more, as noted above the defendant
No.1 in his testimony as DW1 has himself admitted that the land
measuring 14 marlas is in possession of plaintiffs; that the plaintiffs aare in
settled exclusive possession over suit property be co
co-sharers; and that
therefore they are entitled to protect their possession against illegal and
forcible dispossession. Even the ledger in respect of the electricity
connection installed by the plaintiffs
plaintiffs on the suit property (Ex.PW4/A) was
duly proved by DW1/appellant/defendant No.1. No doubt the defendant
No.1 is a co--sharer
sharer in the joint khewat but that would not give him the
right to interfere in the admitted exclusive settled possession of the
plaintiffs
aintiffs of the suit property illegally and forcibly "except in due course of
law".
22. In holding as above, I find support from a three-Judge
Bench judgment of the Hon'ble Supreme Court rendered in case of "Rame
13 of 16
Neutral Citation No:=2025:PHHC:011070
Gowda (D) by Lrs. Vs. Mr. Varadappa Naidu (D) by Lrs. & Another" Law
Finder Doc ID # 65812, wherein it has been held that:-
"B.
B. Specific Relief Act, 1963, Section 36 - Question of title -
Trespasser - Injunction against true owner and in favour of
trespasser
er in settled possession - It is not necessary for the
person claiming injunction to prove his title to the suit land -
He is required only to prove his lawful long possession
without any concealment to the true owner and that his
possession was invaded or threatened - Question of title
remains and have to be kept open to be adjudicated in a
regular suit."
23. Another three-Judge
Judge Bench of the Hon'ble Supreme
Court in "A. Subramanian & Another Vs. R. Pannerselvam" Law Finder
Doc ID # 1805417, held as under:-
"Permanent injunction - Even trespasser in established
possession of property can obtain injunction.
Permanent injunction - Suit for permanent injunction can be
filed without seeking a prayer for declaration.
Specific Relief Act, 1963 Sections 6 and 38 Decree of suit for
Permanent injunction restraining defendant from disturbing
peaceful possession and enjoyment of plaintiff over suit
property - Appeal by defendants - Plea of defendants that
plaintiff claimed right to suit property on basis of sal
sale deed
which is invalid as not executed by proper power of attorney
by heirs of 'D' - Held, even trespasser, who is in established
possession of property can obtain injunction - High Court
rightly observed that plaint shows that plaintiff not narrated
anything
hing about title dispute obviously because of fact that in
14 of 16
Neutral Citation No:=2025:PHHC:011070
previous litigation, defendant failed to obtain any relief - High
court rightly observed that principle that plaintiff cannot seek
for bare permanent injunction without seeking a prayer for
declaration
tion improper and not applicable - Therefore, decree
of permanent injunction upheld.
upheld."
24. This Court in "Smt. Geeta and Another Vs. Ashok
Kumar" Law Finder Doc ID # 68017, has held that:-
"Civil
Civil Procedure Code, 1908, Order 39, Rules 1 and 2 - Indian
Easements Act, 1882, Section 63 - Scope and applicability -
Even trespasser having established possession of property
cannot be dispossessed forcibly by true owner - True owner
can recover possession only by due process of law even from
unauthorised occupant - Entitled to issue of ad interim
injunction restraining defendant from interfering with their
possession - Held, ad interim injunction granted only to the
effect plaintiffs not to be dispossessed from land in dispute
except in due course of law."
25. In face of the above noted factual and legal position,
the ld. Courts below correctly held that as the Plaintiffs are recorded in
exclusive possession of suit property as per the revenue records, that is,
Jamabandi for the year 2006-07;
2006 and DW1 has admitted in cross-
examination that Bapu Kumbh Dass is owner of suit property and the land
measuring 14 Marlas is in possession of the Plaintiff
Plaintiff; and that Plaintiffs are
in settled exclusive possession of suit property being co
co-sharers and they
are entitled to protect
protect their possession against illegal and forcible
dispossession thus, the remedy available with Defendant is to seek
dispossession;
partition of the joint suit land. The report of Local Commissioner is not
15 of 16
Neutral Citation No:=2025:PHHC:011070
relevant as the case is not of removal of encroachment rather injunction
against illegal and forcible dispossession by Defendants. Ld. Appellate
Court dismissed the Appeal vide Judgment and decree dated 06.08.2022
and consequently restrained the Appellant from illegally and forcefully
interfering in functioning of Plaintiff Committee, dispossessing the Plaintiff
from suit property or demolishing construction of Plaintiff, except in due
course of law.
26. I find no ground is made out to interfere in the well
well-
reasoned judgments and decrees of the ld. Courts below. In view of the
above, present appeal is dismissed.
27. Pending application(s) if any also stand(s) disposed of.
24.01.2025 (Nidhi Gupta)
Sunena Judge
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
16 of 16
