State Of Haryana vs Bhullar on 26 February, 2024

Punjab-Haryana High Court

State Of Haryana vs Bhullar on 26 February, 2024

Author: Alka Sarin

Bench: Alka Sarin

                                                                                       2024:PHHC:025600
                            RSA No.745 of 1995                                                       1


                                    IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                   CHANDIGARH

                                                                  RSA No.745 of 1995 (O&M)
                                                                  Reserved on : 14.02.2024
                                                                  Date of Decision : 26.02.2024


                            State of Haryana                                                 ....Appellant

                                                              VERSUS

                            Bhullar (now deceased) through LRs                            ....Respondents



                            CORAM : HON'BLE MRS. JUSTICE ALKA SARIN



                            Present :    Mr. Saurabh Girdhar, AAG Haryana for the appellant.

                                        Mr. R. A. Sheoran, Advocate for the respondents.



                            ALKA SARIN, J.

1. The present appeal has been preferred by the defendant-

appellant against the judgment and decree dated 20.10.1994 passed by the

First Appellate Court whereby it decreed the suit of the plaintiff-respondent.

The Trial Court vide it’s judgement and decree dated 24.03.1992 dismissed

the suit.

2. The plaintiff-respondent filed a suit for permanent injunction

against the defendant-appellant for restraining it from taking forcible

possession of the property in dispute comprised in Khasra No.20//14 min

south (1-19) situated at Akbarpur within the municipal limits of Loharu,

Tehsil Loharu, District Bhiwani. It was averred that the plaintiff-respondent

alongwith other cosharers was the owner in possession of total land

Yogesh Sharma
2024.02.26 18:02
I attest to the accuracy and
integrity of this order/judgment.

High Court Chandigarh

2024:PHHC:025600
RSA No.745 of 1995 2
measuring 51 kanals 18 marlas including the property in dispute and in a

mutual partition in between the cosharers the plaintiff-respondent had

become exclusive owner in possession of the property in dispute. As per the

plaintiff-respondent, he had constructed a residential house and was residing

there with his family and was also running a hotel-cum-dhaba. It was alleged

that the defendant-appellant through its officials had threatened to take

forcible possession of the property in dispute. Hence, the suit. In it’s written

statement the defendant-appellant took the stand that the Khewat had already

been partitioned in accordance with law and the partition proceedings had

attained finality. As per the defendant-appellant, in the partition proceedings

the property in dispute fell to the share of the defendant-appellant and that

the plaintiff-respondent had nothing to do with it. It was averred that the

plaintiff-respondent was in possession of some other land while one

Dharambir was running a dhaba unauthorizedly in a hut in the property in

dispute. Replication was filed and the contents of the plaint were reiterated.

It was further pleaded that the order for partition dated 23.07.1984 passed by

the Assistant Collector 1st Grade was illegal, invalid, not binding upon the

rights of the plaintiff-respondent and liable to be set aside. It was further

pleaded that Dharambir was running a dhaba as tenant of the plaintiff-

respondent.

3. From above pleadings of parties the following issues were

framed :

1. Whether the plaintiff is in possession of the suit

land as alleged ? OPP

2. Whether the defendant threatened to take

possession by force as alleged ? OPP
Yogesh Sharma
2024.02.26 18:02
I attest to the accuracy and
integrity of this order/judgment.
High Court Chandigarh

2024:PHHC:025600
RSA No.745 of 1995 3

3. Whether the plaintiff has suppressed material facts?

If so, to what effect ? OPD

4. Whether this Court has no jurisdiction to try this

suit ? OPD

5. Whether the suit is false and frivolous and the

defendant is entitled to special costs ? If so, how much ?

OPD

6. Whether the suit property has fallen to the share of

the defendant in partition ? OPD

7. Whether the said partition is illegal, void and not

enforceable as alleged ? OPD

8. Relief.

4. Vide judgement and decree dated 24.03.1992 the Trial Court

dismissed the suit of the plaintiff-appellant. However, on appeal, the First

Appellate Court vide judgement and decree dated 20.10.1994 decreed the

suit of the plaintiff-respondent. Hence, the present regular second appeal.

5. Learned State counsel has contended that the First Appellate

Court has erred in decreeing the suit of the plaintiff-respondent on mere

conjectures and surmises. It is submitted that there is sufficient material

available on the record to show that the property in dispute came to the share

of the defendant-appellant in partition proceedings and as such the suit

deserved to be dismissed. Per contra, learned counsel for the plaintiff-

respondent submitted that the partition proceedings were illegal and not

binding and that infact it was the plaintiff-respondent who was in possession

of the property in dispute and therefore the First Appellate Court rightly

decreed the suit.

Yogesh Sharma

2024.02.26 18:02
I attest to the accuracy and
integrity of this order/judgment.

High Court Chandigarh

2024:PHHC:025600
RSA No.745 of 1995 4

6. Heard learned counsel for the parties and perused the record.

7. The record especially Ex.D2 shows that the defendant-appellant

was the owner to the extent of 2/3rd share in the total land measuring 51

kanals 18 marlas and the plaintiff-respondent was owner to the extent of

1/36 share. The record of the partition proceedings shows that the plaintiff-

respondent had 1 kanal 8 marlas in the joint holding and after partition he

got 1 kanal 9 marlas in Khasra No.20//15/4. The property in dispute falling

in Khasra No.20//14 was divided amongst the defendant-appellant and

others. The plaintiff-respondent was not given any share in Khasra

No.20//14 though he got an extra marla in the area coming to his share.

Further, when the partition was approved by the Assistant Collector 1st

Grade, after the period of limitation had elapsed, no appeal had been

preferred by any party. Even, as per documentary evidence produced by the

plaintiff-respondent in the form of jamabandi Ex.P5, he is not in possession

of the property in dispute. Had the plaintiff-respondent been in actual

possession, his possession would have been recorded in the revenue record.

8. The present suit was one for simpliciter injunction. In

Anathula Sudhakar vs. P. Buchi Reddy [(2008) 4 SCC 594] the Supreme

Court had the occasion to lay down general principles as to when a mere suit

for permanent injunction will lie and when it is necessary to file a suit for

declaration and/or possession with injunction as a consequential relief. The

relevant portion of that judgment is extracted below :

“21. To summarise, the position in regard to suits for

prohibitory injunction relating to immovable property,

is as under :

Yogesh Sharma
2024.02.26 18:02
I attest to the accuracy and

integrity of this order/judgment.

High Court Chandigarh

2024:PHHC:025600
RSA No.745 of 1995 5

(a) Where a cloud is raised over the plaintiff’s title and

he does not have possession, a suit for declaration and

possession, with or without a consequential injunction,

is the remedy. Where the plaintiff’s title is not in dispute

or under a cloud, but he is out of possession, he has to

sue for possession with a consequential injunction.

Where there is merely an interference with the plaintiff’s

lawful possession or threat of dispossession, it is

sufficient to sue for an injunction simpliciter.

(b) As a suit for injunction simpliciter is concerned

only with possession, normally the issue of title will not

be directly and substantially in issue. The prayer for

injunction will be decided with reference to the finding

on possession. But in cases where de jure possession

has to be established on the basis of title to the property,

as in the case of vacant sites, the issue of title may

directly and substantially arise for consideration, as

without a finding thereon, it will not be possible to

decide the issue of possession.

(c) But a finding on title cannot be recorded in a suit

for injunction, unless there are necessary pleadings and

appropriate issue regarding title (either specific, or

implied as noticed in Annaimuthu Thevar [Annaimuthu

Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the

averments regarding title are absent in a plaint and

where there is no issue relating to title, the court will
Yogesh Sharma
2024.02.26 18:02
I attest to the accuracy and
integrity of this order/judgment.

High Court Chandigarh

2024:PHHC:025600
RSA No.745 of 1995 6
not investigate or examine or render a finding on a

question of title, in a suit for injunction. Even where

there are necessary pleadings and issue, if the matter

involves complicated questions of fact and law relating

to title, the court will relegate the parties to the remedy

by way of comprehensive suit for declaration of title,

instead of deciding the issue in a suit for mere

injunction.

(d) Where there are necessary pleadings regarding

title, and appropriate issue relating to title on which

parties lead evidence, if the matter involved is simple

and straightforward, the court may decide upon the

issue regarding title, even in a suit for injunction. But

such cases, are the exception to the normal rule that

question of title will not be decided in suits for

injunction. But persons having clear title and possession

suing for injunction, should not be driven to the costlier

and more cumbersome remedy of a suit for declaration,

merely because some meddler vexatiously or wrongfully

makes a claim or tries to encroach upon his property.

The court should use its discretion carefully to identify

cases where it will enquire into title and cases where it

will refer to the plaintiff to a more comprehensive

declaratory suit, depending upon the facts of the case.”

9. The First Appellate Court erred in holding against the

defendant-appellant and delving into the question of title in a suit for
Yogesh Sharma
2024.02.26 18:02
I attest to the accuracy and
integrity of this order/judgment.

High Court Chandigarh

2024:PHHC:025600
RSA No.745 of 1995 7
injunction. Further, there was also no occasion for the First Appellate Court

to hold that the partition was not bonafide and was a malafide act of the

officials and hence the plaintiff-respondent was held being in possession.

There was no challenge in the suit for injunction to the partition proceedings

or the orders passed in the partition proceedings.

10. In view of the above, the reasoning given by the First Appellate

Court and the findings recorded by it are perverse and not sustainable. The

judgement and decree of the First Appellate Court are hereby set aside and

the judgement and decree of the Trial Court is restored. The present regular

second appeal is allowed and the suit of the plaintiff-respondent stands

dismissed. Pending applications, if any, also stand disposed off.

                            26.02.2024                                         ( ALKA SARIN )
                            Yogesh Sharma                                          JUDGE

NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO

Yogesh Sharma
2024.02.26 18:02
I attest to the accuracy and
integrity of this order/judgment.

High Court Chandigarh