RSA No. 859 of 2017 (O&M)

1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA No. 859 of 2017 (O&M)

Date of decision : August 27, 2018

Palwinder Singh

.....Appellant

Versus

Bhupinder Singh and another

....Respondents

CORAM:- HON'BLE MRS. JUSTICE LISA GILL

Present:

Mr. C.L. Sharma, Advocate

for the appellant.

***

LISA GILL

, J.

The appellant-plaintiff is aggrieved of concurrent findings

rendered by the learned Civil Judge (Junior Division), Jalandhar vide

judgment and decree dated 31.03.2015 and learned Additional District

Judge, Jalandhar vide judgment and decree dated 06.09.2016.

Suit for permanent injunction was filed by the appellant-

plaintiff seeking to restrain the defendants from encroaching upon the suit

land by way of passage etc. or diminishing its value or utility by digging or

removing the earth therefrom. The appellant claimed to be the owner in

possession of the property in question on the basis of the registered sale

deed dated 19.07.2010. It was pleaded that respondent No. 3 – father of the

plaintiff was earlier the owner in possession of the suit property being the

co-sharer to the extent of his share. Six marlas of land was purchased vide

sale deed dated 19.07.2010 by the appellant from his own father –

respondent No. 3 with specific boundaries as detailed in the plaint. Mutation

of the same was entered in the revenue records. It was further submitted that

respondents/defendants No. 1 and 2 are neither co-sharers nor have any

ownership or possessory rights but they wished to encroach upon the suit

RITU SHARMA

2018.08.30 11:34

I attest to the accuracy and

authenticity of this document

Chandigarh

RSA No. 859 of 2017 (O&M)

2

property measuring six marlas purchased by the plaintiff by using it as a

passage. They further sought to diminish its value and utility by digging

thereon and removing its earth. Hence, the suit was filed.

Respondents-defendants No. 1 and 2 filed a joint written

statement. While taking preliminary objections, averments made in the

plaint were also controverted. It was stated that the appellant had not come

to Court with clean hands. He was a co-sharer in the suit property. The suit

was, in any case, bad for non-joinder of necessary parties as property was

purchased by Sukhwinder Kaur i.e. wife of respondent No. 1 – Bhupinder

Singh, who was not impleaded as a party to the suit. It was further submitted

that the appellant intended to purchase the property at a throwaway price

but respondent No. 1 purchased 21 marlas of land for a sum of `5,90,000/-

from Joginder Singh and Satwinder Singh sons of Dalip Singh vide

registered sale deed dated 02.08.2010. Passage of the property was duly

provided and mentioned in the sale deed. The appellant, it was stated,

wanted to obstruct the same and he had tried to conceal the true facts.

Replication thereto was filed with the averment that khasra No.

101/1 was comprised of land measuring 4 kanal 18 marlas i.e. 98 marlas. 49

marlas out of the said 98 marlas was owned and possessed by Ajit Singh son

of Dyal Singh i.e. father of the appellant. Remaining 49 marlas were owned

by Joginder Singh and Satwinder Singh sons of Dalip Singh. Joginder Singh

and Satwinder Singh sold 28 marlas to Mohinder Singh and 21 marlas to the

wife of respondent No. 1. It was alleged that possession of 10 marlas of land

from khasra No. 101/1 were illegally and forcibly given to Karnail Singh.

This land abutted six marlas owned and possessed by the appellant. Karnail

Singh handed over the possession of the said 10 marlas to Balwinder Singh.

RITU SHARMA

2018.08.30 11:34

I attest to the accuracy and

authenticity of this document

Chandigarh

RSA No. 859 of 2017 (O&M)

3

Joginder Singh and Satwinder Singh sold land in addition to what they have.

Existence of the passage was denied.

Following issues were framed by the learned trial Court on the

basis of the pleading:-

1. Whether t