regarding civil suit
Neeraj Kaushal
(Querist) 05 April 2010
This query is : Resolved
I have filed suit for permanent injunction against 3 defendants restraining them from raising any type of construction over the suit land , at the time of filing suit two defendants are serving in Indian army and they are not present at the time of cause of action , whether civil proceedings can be initiate against that person not present at the time of cause of action . I have written in my pleading that defendants are digging the suit land for raising construction and i have also mentioned it in my cause of action para , please guide me with citations,
Kiran Kumar
(Expert) 05 April 2010
if you are making specific allegations against the persons who were actually not present when the cause of action arose then you may find it difficult to prove your case. Since they are serving in Army they will be able to rebut your contention with sufficient evidence brought from authorities....otherwise you could have said, some of their relatives digging the land.
PALNITKAR V.V.
(Expert) 05 April 2010
Merely because they are in Army, it will not be proper to say that there can't be any cause of action. If they are instigators and the persons actually doing illegal acts are the mere agents, injunction can be asked against the persons serving in Army, though they may not be present at the time of incident.
Parveen Kr. Aggarwal
(Expert) 05 April 2010
What a person can do himself can also do it through his agents, representatives, servants, attorneys etc. The persons who are serving in army may raise construction through any of their agents, representatives, servants, attorneys, relatives etc. So despite being in army service and serving away from the place where cause of action arose still there can be cause of action against them.
G. ARAVINTHAN
(Expert) 06 April 2010
you can proceed with Indian Soldiers Litigation Act and also to plead that they are the cause by way of instigating the other defendant to do the cause of action
INGLE G.[ADVOCATE]9421657505
(Expert) 06 April 2010
Main Search Forums Advanced Search Disclaimer
Jyoti Parkash vs Dharam Chand And Others on 23 February, 2010
Citedby 3 docs
Om Parkash And Anr. vs Dharam Pal And Ors. on 4 September, 1979
Dewan Chand vs Sh. Darshan Lal And Ors. on 28 April, 1994
K. Jewan Jyoti vs Fateh Chand Brij Lal on 17 September, 1999
Blog Links
powered by
Punjab-Haryana High Court
R. S. A. No. 866 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : R. S. A. No. 866 of 2010
Date of Decision : February 23, 2010
Jyoti Parkash .... Appellant Vs.
Dharam Chand and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Nand Lal Sharma, Advocate
for the appellant.
* * *
L. N. MITTAL, J. (Oral) :
This is second appeal by plaintiff Jyoti Parkash having remained unsuccessful in both the courts below.
Plaintiff filed suit for permanent injunction alleging that he is owner in possession of the disputed three plots bearing nos.16/1, 16/2 and 16/3 being part of killa no.78 . The plaintiff purchased plot no.16/3 from Gurbachan Singh vide sale deed dated 14.10.1991. The plaintiff agreed to purchase the remaining two plots from Banta Singh and Ranga Singh and obtained actual possession thereof. However, the defendants, without any right, title or interest, threatened to raise construction over the said plots. The plaintiff earlier also filed a suit for permanent injunction against the defendants, but the said suit was withdrawn by the plaintiff on 03.01.1994 as the matter was compromised between the parties, but the defendants avoided the compromise and again threatened the plaintiff. R. S. A. No. 866 of 2010 2
The defendants pleaded that plaintiff is neither owner nor in possession of the suit property. Previous suit filed by the plaintiff was dismissed as withdrawn without permission to file a fresh suit. Earlier, the plaintiff had alleged that he was General Attorney of Ranga Singh and others, who were owners of the suit property. Now in the instant suit, the plaintiff has changed his version and is claiming himself to be owner in possession of the suit property. In fact, the suit property is in possession of Dhanak Samaj and construction up to lintel level has been made. Gurbachan Singh, Banta Singh and Ranga Singh were neither owners nor in possession of the suit property and therefore, any agreement or sale deed by them has no value. Ranga Singh etc. had also filed suit through the plaintiff as Attorney, but the said Power of Attorney was later on cancelled. The said suit was withdrawn on 24.09.1991. Gram Panchayat, vide resolution dated 18.01.1990, gave the suit property to members of Dhanak Samaj for constructing their chopal, which is accordingly being constructed by Dhanak Samaj.
Learned Additional Civil Judge (Senior Division), Rohtak, vide judgment and decree dated 03.02.2006, dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Fast Track Court, Rohtak, vide judgment and decree dated 27.01.2010. Feeling aggrieved, the instant second appeal has been preferred by the plaintiff.
I have heard learned counsel for the appellant and perused the case file.
The plaintiff claims sale deed of one plot in his favour by Gurbachan Singh. However, there is no evidence on record to depict that Gurbachan Singh was owner or in possession of the said plot. The plaintiff claims agreement to sell in his favour regarding the remaining two plots executed by Banta Singh and Ranga Singh, but again, there is no evidence to depict title or possession of Banta Singh and Ranga Singh on the said two R. S. A. No. 866 of 2010 3
plots. On the contrary, merely on the basis of agreement or General Power of Attorney, the plaintiff cannot claim ownership or possession over the disputed plots. On the other hand, there is resolution dated 18.01.1990 by Gram Panchayat allotting the disputed three plots to Harijans for chopal of Dhanaks. This fact has been admitted even by plaintiff's own witness. Both the courts below have found that the plaintiff is not proved to be owner or in possession of the suit property. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal. Even learned counsel for the appellant conceded that there is no evidence to show title of plaintiff's predecessor over the suit property. Consequently, the plaintiff cannot succeed. Learned counsel for the appellant contended that the defendants have also failed to prove their title or possession over the suit property. However, even if it be assumed to be so, the plaintiff cannot succeed unless he establishes his ownership or possession over the suit property.
Learned counsel for the appellant also contended that the appellant has raised construction over the suit property and is therefore, in possession thereof. The contention is untenable because the plaintiff has pleaded that the defendants were threatening to raise construction on the disputed plots. It is thus case of the plaintiff himself that the plots were lying vacant.
It is also worth mentioning that plaintiff's predecessors had earlier filed suit through the plaintiff himself as Attorney, but the said suit was dismissed as withdrawn. Thereafter, the plaintiff himself filed suit a suit, which was also dismissed as withdrawn on 03.01.1994. The instant suit was filed just nine days thereafter i.e. on 12.01.1994. The plaintiff pleaded that he withdrew the previous suit on 03.01.1994 in view of compromise effected between the parties. However, no such compromise has seen the light of the day.
In view of the aforesaid, I find no merit in the instant second R. S. A. No. 866 of 2010 4
appeal. No substantial question of law arises for determination in the instant second appeal. The case is based purely on finding of fact. The appeal is found to be without any merit and is accordingly dismissed in limine.
February 23, 2010 ( L. N. MITTAL ) monika JUDGE
