Punjab-Haryana High Court
Prem Nath Etc vs Durgiana Committe, Amritsar Etc on 12 March, 2025
Neutral Citation No:=2025:PHHC:034722
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-2147-1998 (O&M)
Reserved on: 10.03.2025
Pronounced on: 12.03.2025
PREM NATH (DECEASED) THROUGH HIS LRS AND OTHERS
. . . .APPELLANTS
Vs.
DURGIANA COMMITTEE, AMRITSAR AND ANOTHER
. . . . RESPONDENTS
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued by:- Mr. V.K. Sandhir, Advocate, for the appellants.
Mr. Neeraj Yadav, Advocate, for respondent No.1.
Mr. Lalit Attri, Advocate, for respondent Nos.2 & 3.
DEEPAK GUPTA, J.
Suit for mandatory injunction with consequential relief of
permanent injunction regarding the property in dispute filed by plaintiffs
(appellants herein) was decreed by ld. Civil Judge (Jr. Divn.), Amritsar vide
judgment dated 23.12.1993, issuing a decree of mandatory injunction by
directing defendant No.1-Durgiana Committee, Amritsar (now respondent
No.1) to demolish the wall marked AB measuring 70 ft. in length and 7 ft. in
height, as shown in site plan (Ex.P1). However, suit of the plaintiffs seeking
decree of declaration as well as permanent injunction was dismissed.
2. Both the parties went in appeal. Plaintiffs filed the appeal
submitting that trial Court was not justified in declining the prayer of
declaration for ownership of the plaintiffs qua the property in dispute i.e. a
path measuring 2 kanal leading from Khasra Nos.591 to 590. On the other
hand, defendant No.1-Durgiana Committee, Amritsar filed appeal with the
submissions that trial Court was not justified in granting the mandatory
injunction and directing the said Durgiana Committee, Amritsar to demolish
the disputed wall. Both these appeals were heard together by ld. Additional
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District Judge, Amritsar and vide judgment dated 07.05.1998, both the
appeals were Dismissed.
3. Against the aforesaid judgments, the plaintiffs have approached
this Court by way of the present Regular Second Appeal.
4. In order to avoid confusion, parties shall be referred as per their
status before the Trial Court.
5. Though the relief for mandatory injunction as sought by the
plaintiffs i.e., appellants herein has already been granted by the trial Court
and finding to that effect has been upheld by the First Appellate Court but
the contention raised by of ld. counsel for the appellants before this Court is
that ownership of the property was not in dispute and therefore, the Courts
below were not justified in commenting or giving any finding on the title to
the property in dispute.
6. However, after perusing the entire paper book, this Court does
not find any merit in this contention.
7. Perusal of the judgments passed by the Courts below would
reveal that although in the head-note of the plaint, plaintiffs-appellants had
prayed only for the mandatory injunction to restrain defendant No.1 to
dismantle the wall marked by letter 'AB' measuring 70 ft. in length and 7 ft. in
height constructed on the property in dispute as shown in red colour in the
site plan attached with the plaint on the southern side bearing khasra
No.591, Khata No.120 as per jamabandi for the year 1943-44 with
consequential relief to restrain the defendants from raising further
construction by closing the outlet from free access towards north marked 'D'
in the site plan, but in the prayer clause, apart from these reliefs, plaintiffs
had also prayed for a decree of declaration that they are entitled to be
declared as owners in possession of the path measuring 2 kanal leading from
khasra No.591 to 590 touching the main road within a mandate to
defendants to direct them not to block or raise any construction over this
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path, which is in the ownership of plaintiffs, as has been noticed by the
courts below.
8. Apart from above, issue No.1 was specifically framed to the
effect that 'whether the plaintiffs are owners in possession of the suit
property and are entitled to mandatory injunction and declaration as prayed
for'. Not only this, issue of title was also raised and argued before the first
appellate court.
9. It is, thus, clear from the prayer clause of the plaintiffs as well as
issue No.1 as framed by the trial court that ownership of the property in
dispute was an issue before the Courts below and so, there is no merit in the
contention that Courts should not have given any findings on the title to the
property in dispute.
10. Proceeding further, it is noticed by the courts below that as per
the revenue record, Chah Bishan Das son of Jawala Dutt, Bhairo Darwaja
Lohgarh, Amritsar, Mastil Talab Durgiana was under the management of
Vishwa Nath son of Duni Chand son of Sita Ram along with others. Based
upon the entries in the revenue record, the Courts concluded that Vishwa
Nath, the father of the plaintiffs was not the owner of the land in dispute and
rather, he appeared to be one of the trustees or managers and as such,
plaintiffs could not be declared to be owners of the land measuring 0 kanal
12 marla comprised in khasra No.591.
11. Further, plaintiffs had also claimed ownership of the land
measuring 2 kanal comprised in path leading from khasra No.591 to 590 by
way of adverse possession. In this regard, it has been noticed by the Courts
below that plaintiffs sought declaration of title regarding this land to be
owner by way of adverse possession, but without disclosing the name of the
original owner of the said land measuring 2 kanals. It was further found by
the Courts below that plaintiffs had not fulfilled the legal requirements to
constitute the adverse possession over the said land. As such, plaintiffs could
not be declared owner of the said land by way of adverse possession.
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12. Ld. counsel for the appellants before this Court could not
convince this Court about any fault in the aforesaid findings of facts as
recorded by the Courts below.
13. As such, this Court does not find any ground, whatsoever, to
interfere in the well-reasoned concurrent findings of facts as recorded by the
Courts below. It has already been noticed that ownership issue was raised by
the plaintiffs and so, the Courts were justified in giving finding regarding the
title to the property in dispute also.
14. Consequently, this Court does not find any merit in the appeal.
Same is hereby dismissed.
(DEEPAK GUPTA)
12.03.2025 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? No
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