IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH

123

RSA-661-2022 (O&M)

Date of decision: 25.03.2022

Man Singh and another

.....Appellants

Versus

Kreshan @ Roshan Lal

.....Respondent

CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

Present :

Mr. K.C. Bhatia, Advocate for the appellants.

****

MANJARI NEHRU KAUL, J. (ORAL)

1.

The appellants-defendants No.2 and 4 are assailing the

concurrent findings recorded by both the Courts below in favour of the

respondent-plaintiff in a suit for mandatory injunction. The suit for

mandatory injunction was filed by the respondent-plaintiff for directing

defendants No.1 to 4, namely Kuldeep Singh @ Pappu, Balkishan @

Tilu, Parwara and Mann Singh to hand over the vacant possession of

the suit property (bara measuring 0K-7M comprised in Khewat

No.318/285, Khatoni No.545, Khasra No.306, situated in village

Singhra, Tehsil Nissing, District Karnal vide jamabandi for the year

2006-07) and removal of construction raised thereon.

2.

For the sake of convenience, the parties to the lis,

hereinafter shall be referred to by their original position in the suit.

3.

Defendant No.2-Balkishan @ Tilu and defendant No.4-

Man Singh contested the suit by asserting that they were bonafide

purchasers of the suit property, having purchased the same for a sale

consideration of Rs.2,10,000/- each, from one Tarsem Singh son of

VINAY

2022.03.29 18:30

I attest to the accuracy and

authenticity of this document

RSA-661-2022 (O&M)

-2-

Ajaib Singh. After receiving full and final payment of the sale

consideration, said Tarsem Singh delivered actual and physical

possession of the suit property to defendants No.2 and 4 and also

executed an agreement to sell dated 23.01.2014 which in turn was duly

attested from a public notary at Karnal. Ever since 23.01.2014,

defendants No.2 and 4 had been in actual and physical possession of

the suit property as owner thereof.

4.

Both the Courts below concurrently recorded findings of

fact that the plaintiff successfully proved that he along with proforma

defendants was the owner of the property which was in possession of

defendants No.1 to 4. The plaintiff himself and Bhaktawar stepped into

the witness box as PW1 and PW2 and tendered copy of passbook of

land holding as Ex.P1, Mutation No.126 as Ex.P2, Hindi Translation

Mutatioin No.126 as Ex.P2/T, copy of Aks Sajra as Ex.P3, copy of

jamabandi of 2016-17 as Ex.P4. Copy of khasra girdawari as Ex.P5,

copy of death certificate of Gendi Devi as Ex.P6, copy of Aadhaar Card

of Roshan Lal as Ex.P7, copy of judgment and decree dated 02.04.2014

as Ex.P8 and P9 and closed the evidence. The defendants examined

Mann Singh as DW1, Bal Kishan as DW2 and Amar Singh as DW3 and

proved original agreement Ex.D1, Electricity bills as Ex.D2 to D8, site

plan Ex.D9, copy of agreement Mark-P, original agreement Ex.D10 and

site plan as Ex.D11. Thereafter, defendants No.2 and 4 tendered

electricity bills as Ex.D10 to D18 and closed their evidence.

5.

I have heard learned counsel for the appellants-defendants

No.2 and 4 at length and perused the paper book.

6.

Learned counsel while drawing the attention of this Court

VINAY

2022.03.29 18:30

I attest to the accuracy and

authenticity of this document

RSA-661-2022 (O&M)

-3-

to the impugned judgment and decree passed by the Courts below has

argued that both the Courts failed to appreciate that the suit filed by the

plaintiff was for mandatory injunction and not a suit for declaration

with possession. Hence, the plaintiff was required to prove that the

defendants had forcibly dispossessed him from the property in dispute.

It was also argued that no complaint whatsoever or any representation

had been brought on record to support that the plaintiff had been ever

dispossessed from the suit property. It was also argued that the Courts

below ignored the specific plea taken by defendants No.2 and 4 that

they both were the absolute owners in possession of (3 marlas