Judgment

N. P. SINGH

( 1 ) THE Municipal Committee, Jind, has filed this appeal for setting aside the judgment of the Additional District Judge (hereinafter referred to as the Court of Appeal) decreeing the suit filed on behalf of the respondent, which had been dismissed by the Trial Court. The Second Appeal filed on behalf of the appellant, before the High Court was dismissed in limine. Thereafter, Special Leave Petition (Civil) No. 562 of 1987 was filed before this Court, which was permitted to be withdrawn to enable the appellant to file a Review Petition before the High Court. That Review Petition was dismissed by the High Court saying that no ground for review had been made out.

( 2 ) THE respondent filed the suit in question for injunction restraining the appellant from interfering with the possession of respondent over 5 kanals of land, comprised in Khewat No. 134, Khatoni No. 155, rectangle No. 173, Killa No. 27/1. The respondent claimed to be the owner of the said land and asserted that he was in possession thereof.

( 3 ) THE claim of the respondent was resisted on behalf of Municipal Committee saying that the said respondent was neither the owner of the land in question nor he was in possession thereof. It was asserted that the land being "gair-mumkin johar", in which the Municipal Committee had already constructed a park, there was no question of the respondent acquiring any right, title and interest in the same. According to the appellant, the said respondent had made some unauthorised encroachment over the same because of which a statutory notice was given to him, which was challenged by the said respondent in the suit in question.

( 4 ) THE learned subordinate Judge on consideration of the materials on record came to the conclusion that the respondent had failed to prove that he was the owner and was in possession of the suit land. On that finding the suit was dismissed. The Court of Appeal, set aside the finding recorded by the Trial Court and decreed the suit of the respondent, saying that the title of Prem Singh, which was alleged to be the predecessor-in-interest of the respondent, had been established. It was also held that the appellant was in possession of the suit property. The Second Appeal filed on behalf of the appellant-Municipal Committee as already mentioned above was dismissed. The Review Petition filed to recall the order of dismissal of the Second Appeal was also dismissed in limine.

( 5 ) IT may be mentioned at the outset that throughout the suit has been treated to be a suit based on title and for confirmation of possession. The learned counsel, appearing for the appellant-Municipal Committee, pointed out that the Court of Appeal while decreeing the suit of the respondent, committed a serious error of law when before examining the question as to whether respondent had been able to establish his title over the suit land, it proceeded to consider only the materials on record in support of the claim of the possession made on behalf of the respondent. The Trial Court had examined the claim of the title made on behalf of the respondent in detail and had recorded a finding that the said respondent had failed to prove his title to the suit. Even the sale deed through which the said respondent claimed to have purchased the land in dispute had not been produced before the Court. An objection was taken on behalf of the appellant against that part of the judgment of the Court of Appeal, where it has been stated that although the respondent had not produced the sale deed through which he had acquired the title to the land in question but that was of no consequence as that fact had been admitted by the Municipal Committee. In this connection, reference was made to the written statement filed on behalf of the Municipal Committee disputing the title and possession of the respondent. Our attention was drawn to the plaint, filed on behalf of the respondent, and the written statement filed on behalf of the appella