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D.G. KHAN HINDU HIGHER SECONDARY SCHOOL versus DAL CHAND & ORS.

High Court of Punjab and Haryana, Chandigarh

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D.G. Khan Hindu Higher Secondary School v. Dal Chand & Ors. - RSA-3621-1997 [2006] RD-P&H 3323 (22 May 2006)

R.S.A. No.3621 of 1997 -: 1 :-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

*******

R.S.A. No.3621 of 1997

Date of decision: May 29, 2006.

D.G. Khan Hindu Higher Secondary School & anr.

...Appellants

v.

Dal Chand & Ors.

...Respondent(s)

Present: Shri Depinder Singh Kamra, Advocate for the appellants.

Shri A.P. Bhandari, Advocate for respondent No.1.

Shri Varun Garg, Advocate for

Shri Sumeet Goel, Advocate for respondent No.3.

Surya Kant, J.

This regular second appeal has been preferred by the defendants against whom suit for mandatory injunction filed by the respondent-plaintiffs to the effect that the appellants have encroached upon a part of khasra No.1491 owned by the respondent-plaintiffs and have raised construction of a room measuring 10'x10' and stairs etc. and the said construction was liable to be removed and the respondent-plaintiffs were entitled to take possession of the disputed portion back, has been decreed by both the courts.

As per the case pleaded by the respondent-plaintiffs, they are R.S.A. No.3621 of 1997 -: 2 :-

owners in possession of the property bearing khasra No.1491 measuring 3 kanal 4 marla situated within the abadi of Palwal town. The appellant- school, which is situated in khasra No.1490 and is adjacent to the property in dispute, however, has encroached upon a portion of khasra No.1491 and its management has started raising illegal construction of a room measuring 10'x10' and stairs etc., as shown AX XI XZ and D in red colour in the map attached with the plaint. It was averred that the appellants were liable to remove the encroachment apart from being restrained from interfering in the ownership and possession of the plaintiffs over the suit land.

Contesting the suit, the appellants averred that the respondent- plaintiffs are not full-fledged owners of property bearing khasra No.1491; the appellants are owners in possession of the school building as well as a passage 9 feet wide adjoining the existing pucca construction lying towards eastern side; the entries in the revenue record for the year 1974-75, 1957-58 and 1982-83 regarding khasra No.1491 are incorrect and not as per the site where the school building is in existence since the year 1960. A plea was taken that the disputed property is in possession of the school and construction thereupon was raised in the year 1960 to the knowledge of the respondent-plaintiffs and since the possession was open, adverse, continuous, uninterrupted, hostile and to the knowledge of the plaintiffs, the appellants have become owners by way of adverse possession.

In addition to the eight issues which were originally framed and which included issues No.1 and 2 to the effect, "as to whether the plaintiffs are owners in possession of the suit land bearing khasra No.1491?", and "as to whether the appellants have made an illegal encroachment marked as AZ XI YZ and D and stairs on the suit land?", issue No.7-A as to "whether the R.S.A. No.3621 of 1997 -: 3 :-

report of Local Commissioner is liable to be set aside on the grounds mentioned in objection petition?", as well as one more additional issue as to, "whether the appellants have become owners of the suit land by way of adverse possession?", were also framed. The parties led the documentary as well as oral evidence and on a consideration thereof, both the courts have held that khasra No. 1491 is owned by the plaintiffs in entirety; the appellants have not become owners by way of adverse possession over the suit property and, thus, they are liable to remove the encroachment made by way of construction from the same.

Aggrieved, the defendants have filed this regular second appeal.

I have heard Learned Counsel for the parties and have also perused copies of aksh-shizra (Ex.P2), map (Ex.P1), site plan (Ex.D2) as well as the oral version of Dal Chand one of the plaintiff and DW5, copies of which were made available by Learned Counsel for the parties.

Learned Counsel for the appellants contended that the building of the appellant-school is admittedly constructed over khasra No.1490 which was donated to the management by non-else than the plaintiff- respondent No.1 (Dal Chand) way back prior to the year 1959. This fact has been admitted by Dal Chand when he appeared in the witness box.

Referring to the document ikrarnama dated 2 February, 1959 (Ex.D1),the contents of which have been reproduced in para 3 of the grounds of appeal, Learned Counsel for the appellants argued that the aforesaid ikrarnama is also executed by Dal Chand (plaintiff-respondent No.1) and the execution thereof has been admitted by him in his statement dated 2nd April, 1992.

Relying upon the aforesaid document, it was contended that Dal Chand R.S.A. No.3621 of 1997 -: 4 :-

plaintiff-respondent No.1 himself has given a part of khasra No.1491 to the appellant-school for the construction of a room. According to the learned counsel for the appellants, the aksh-shizra (Ex.P2) if read along with ikrarnama (Ex.D1), there remains no doubt that the present suit has been filed for the same part of khasra No.1491 which had been gifted by plaintiff- respondent No.1 to the school vide ikrarnama (Ex.D1).

On the other hand, Learned Counsel for the respondents contended that the appellants cannot be permitted to make out a totally new case in this regular second appeal, especially when the contention is based upon disputed questions of fact. Learned counsel referred to the statement of Dal Chand respondent No.1, dated 2nd April, 1992 in which, while

admitting that he executed the ikrarnama (Ex.D1), he also clarified that the land was permitted to be utilized for the construction of a room in the southern side which has not been constructed till date. It is, thus, argued that the land permitted to be utilized for construction of a room vide ikrarnama (Ex.D1) is not the same land for which the suit for mandatory injunction has been filed.

After giving my thoughtful consideration to the rival submissions, I am of the view that no case for interference in the impugned judgments and decrees is made out. From the series of documents, especially the revenue record, it stands established that khasra No.1491 is owned by the respondent-plaintiffs. This fact has not been seriously disputed by the appellants also. It is their own case that the adjoining khasra No., namely, khasra No.1490 was gifted to the school by plaintiff- respondent No.1 for construction of the school. The very fact that the appellants took up the plea that the construction of one room and stairs etc.

R.S.A. No.3621 of 1997 -: 5 :-

raised by them on a portion of khasra No.1491 was also raised in the year 1960 and, thus, they have become owners thereof by way of "adverse" possession, clearly suggests that it was never their case that a part of khasra No.1491 was also gifted by plaintiff-respondent No.1 to the school. Their plea of adverse possession has been turned down by both the courts, and rightly so, as they have miserably failed to prove their hostile assertion of ownership qua the same to the knowledge and objection of the respondent- plaintiffs. So far as the ikrarnama (Ex.D1) is concerned, admittedly it is not a registered document. Neither it is a gift deed nor it amounts to transfer of ownership rights without consideration. As explained by Dal Chand -plaintiff/respondent No.1, he had permtited the management of the school to construct one room over khasra No.1491 towars "Janoobi" side, i.e., the southern side. No evidence has been led to connect the disputed room with ikrarnama (Ex.D1). On the other hand, respondent No.1 has categorically stated that the side which he permitted to be utilized for a room vide ikrarnama (Ex.D1) has not been utilized till date. He has not been cross examined on this issue. In this view of the matter, no reliance can be placed upon ikrarnama (Ex.D1) to hold that the appellants have constructed the room and stairs in dispute over the said portion of khasra No.1491 which was allegedly permitted to be utilized by respondent-plaintiff No.1. As a matter of fact, the contention raised by Learned Counsel for the appellants on the basis of ikrarnama (Ex.D1) demolishes their case of adverse possession pleaded and sought to be proved by them before the courts below.

In the light of the above discussion, and having regard to the concurrent finding of fact, which can neither be termed as perverse nor R.S.A. No.3621 of 1997 -: 6 :-

contrary to the evidence on record, I am of the view that this appeal does not give rise to any question of law and, thus, warrants no interference by this Court.

Dismissed.

May 29, 2006. [ Surya Kant ]

kadyan Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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