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Shiv Ram v. Krishan Lal & Ors. - RSA-586-2003 [2006] RD-P&H 3028 (9 May 2006)

R.S.A. No.586 of 2003 -: 1 :-


R.S.A. No.586 of 2003

Date of decision: May 18, 2006.

Shiv Ram



Krishan Lal & Ors.


Present: Shri Ranjit Saini, Advocate for the appellant.

None for the respondents.

Surya Kant, J. (Oral)

This regular second appeal has been filed by the plaintiff whose suit for permanent injunction has been dismissed by both the courts.

Notice of motion was issued and in response thereto, respondents, especially the contesting respondent No.5 has been served. No one appears on behalf of the respondents.

Briefly, the facts are that the plaintiff, alleging himself to be owner in possession of the disputed property, sought injunction against the respondents including the Gram Panchayat, as, according to him, his possession was being threatened on the ground that the suit land is owned by the Gram Panchayat.

Before adverting to the appellant's claim in the suit, it shall be apposite to reproduce the finding returned by the courts below with regard to the appellant's possession over the suit land. In para 22 of the impugned R.S.A. No.586 of 2003 -: 2 :-

judgment dated 16.8.2002 passed by the first appellate court, following observations have been made:-

"So far as factum of possession is concerned, merely by placing chhan (bamboo shed) and khurlies (trough), the possession cannot be claimed as mere user of the Panchayat land by the adjoining owner does not tantamount to possession and as such placing of manure pits or tethering of cattles and placing khurlies or chhan is no proof of possession as such type of use of the land is merely a factum of user and not that of the possession and it is very common in the village society to use the vacant land adjoining to the owned property for storing fuel wood or tethering cattles, but, such use never amounts to possession."

The appellant's suit, however, has been dismissed on the ground that he has failed to produce any title deed on record and/or sufficient oral evidence to prove the ownership or exclusive possession over the disputed property.

Learned Counsel for the appellant vehemently contends, and he appears to be right so, that the suit was for simplicitor injunction and no declaration qua the title was sought, therefore, the appellant was not required to prove his title or ownership qua the same. As far as the injunction is concerned, it is contended that the finding returned by the first appellate court is self-contradictory; once it has been found that the appellant is using the subject land by constructing trough and shed and is tethering cattle there, it stands proved that the subject land is being exclusively used by him.

R.S.A. No.586 of 2003 -: 3 :-

After hearing Learned Counsel for the appellant and keeping in view the finding returned by the courts below in relation to the nature of possession of the appellant over the suit land, this appeal is allowed. The impugned judgment and decree dated 6.12.1999, affirmed by the learned first appellate court vide order dated 16.8.2002, are set aside and the appellant's suit is decreed to the extent that the respondents, including the Gram Panchayat, shall not dispossess him from the suit land except in due course of law.

No order as to costs.

May 18, 2006. [ Surya Kant ]

kadyan Judge


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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