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2023 Supreme(P&H) 2601
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMARJOT BHATTI, J.
Rajinder Singh & Anr. – Appellants
Versus
Paramjit Kaur & Ors. – Respondents
CM-5966-C of 2016, CM-5967-C of 2016 IN/AND RSA-22
Decided On : 28-11-2023
Mr. Gurcharan Dass, Advocate; For the Appellant
Mr. Kamaldip Singh Sidhu, Advocate for Respondents No. 1 and 2.
The disputed site was declared a public park based on evidence, including sale deeds, overriding previous dismissals by lower courts.
Headnote:(A) Code of Civil Procedure, 1908 - Order 1, Rule 10(2) and Section 151 - Regular Second Appeal - Deletion of parties - Application for deletion of deceased party and one withdrawn party allowed as they were not necessary for appeal - Suit for declaration regarding disputed property as public park dismissed by trial court and upheld by appellate court - Appeal allowed, suit decreed as public park with injunction against construction. (Paras 1, 2, 9, 10, 12)
(B) Evidence - Burden of proof - Plaintiffs failed to establish the existence of property as public park despite testimonies - Defendants provided evidence of ownership and lack of park status - Original layout plan not produced by defendants, leading to adverse inference. (Paras 9, 10, 12)
(C) Civil Procedure - Condonation of delay - Delay in re-filing Regular Second Appeal condoned in the interest of justice. (Paras 9, 11)
JUDGMENT
Ms. Amarjot Bhatti, J.
CM-5967-C-2016
This is an application filed under Order 1, Rule 10 (2) read with section 151 CPC for deleting the names of Gurdial Singh and Harbans Singh from the array of respondents. It is submitted that Gurdial Singh - respondent No. 5 was plaintiff No. 4 in the civil suit, who died during the pendency of the civil case. No legal representative of Sh. Gurdial Singh came forward for being impleaded as legal representative in the civil suit. Therefore, he is not being impleaded as a respondent in the memo of parties in the present RSA being a dead person. It is further submitted that Sh. Harbans Singh was defendant No. 3 in the civil suit, against whom the suit was dismissed as withdrawn and the said fact has been noted by the learned trial Court while recording the presence of the counsel for the parties. Therefore, it is prayed that present application may be allowed and names of Gurdial Singh and Harbans Singh may be deleted from the array of respondents, in the interest of justice.
Heard.
Perusal of file shows that respondent No. 5 - Gurdial Singh was plaintiff No. 4 before the trial Court and as per the pleadings of learned counsel for appellants, he died during the pendency of civil suit and no legal representative came forward to contest the civil suit. Further, the perusal of trial Court file shows that the suit against Harbans Singh was dismissed as withdrawn vide order dated 29.05.2002. In view of the aforesaid facts and circumstances, Gurdial Singh and Harbans Singh are not necessary parties for deciding the present appeal. Accordingly, the present application is allowed and names of Gurdial Singh and Harbans Singh are ordered to be deleted from the array of respondents. Amended memo of parties filed along with the application is taken on record.
CM is accordingly, disposed of.
RSA-2286-2016 (O&M)
The appellants/plaintiffs No. 1 and 2 i.e. Rajinder Singh and Manjit Singh have filed the present Regular Second Appeal against impugned judgment and decree dated 19.09.2015 passed by learned Additional District Judge, Ludhiana vide which the appeal preferred by the appellants was dismissed by upholding the judgment and decree dated 30.01.2015 passed by learned Civil Judge (Junior Division), Ludhiana, vide which the suit filed by the plaintiffs was dismissed.
2. The facts of the case are that the disputed site shown in red colour in the site plan carved out of Khasra No. 362 as per jamabandi for the year 1986-87 situated at Barewal Awana, now known as Adarsh Nagar was left as a public park for the inhabitants of the locality by the colonizer defendant No. 1 Paramjit Kaur and her associates at the time of selling the plots to the various owners. That in the year 1987-88, the defendant No.1 along with her associates purchased land from Khewatdar of village Barewal Awana in the khasra no.362, had bast no.157 etc. khata no. 657/985 as per the jamabandi for the year 1986-87. The layout plan out of the land purchased by defendant no. 1 was made as per the attached site plan and the roads, park and various plots were left for the public. The plaintiffs also purchased different plots in the colony from the defendant no. 1 which was named as Adarsh Nagar, Ferozepur Road, near Octroi, Ludhiana. The plaintiffs were assured that the disputed site is left as a park for the future use of the persons who will purchase plots in the locality. The defendants No. 1 & 2 being influential persons and in connivance with police wanted to grab the public park, which was left for the inhabitants of the colony and public at large, which was used by inhabitants and public since the year 1987-88. The plaintiffs along with other residents of locality approached defendants No. 1 & 2 and requested them to admit the claim of the plaintiffs but they threatened the plaintiffs to raise construction and encroach over it. The defendants also collected building material for raising the construction but they were stopped by the M
