BA-BAPU SHIKSHA SAMITI Vs. SUDESH KUMAR

JUDGEMENT

(1.) SUIT filed by the plaintiff was dismissed by the trial court vide judgment and decree dated 31.03.2011. Appeal preferred against the said decree failed and was dismissed on 27.09.2013. This is how, plaintiff is before this court, in this regular second appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

(2.) IN short, plaintiff prayed for a decree for injunction, restraining the defendant from raising any construction over the suit property i.e. a passage or causing any obstruction therein. It was averred that the plaintiff was a registered society and it had constructed a Chhatrawas at Bus stand road Kaithal for the use of Scheduled Castes and Backward Class students. The property shown in yellow and green colours in the site plan, appended with the plaint, was owned by Haryana Wakf Board. And portion shown in yellow colour was leased out to the defendant and green colour portion was in possession of Vivek Malik as tenant under the Wakf Board. Whereas, portion shown in red colour was earmarked as a passage by the Board to be used by the students of the hostel. As defendant threatened to change the nature and character of the passage by raising construction therein, thus, the suit.

(3.) IN defence, it was pleaded, inter alia, that plaintiff intentionally did not describe the dimensions of the building i.e. Ba -Bapu Chhatrawas. And the suit property belonged to the Wakf Board and was never left for any public passage. In fact, defendant had left the suit property in favour of Vivek Malik. The passage was left to access the Kutia Swami Vasudev Ji Maharaj Dharamarth Trust, popular as Hari Chand Kutia. And now, plaintiff intended to encroach a part of the said red colour portion through its official i.e. Amrit Lal, Vice President, by interfering with the rights of the defendant to raise construction. And he (Amrit Lal) had even earlier filed a suit that was decided against him on 17.09.2005. Thus, plaintiff had no right in the suit land. On a consideration of the matter in issue and evidence on record, the courts below found that plaintiff had failed to show any right, title or interest in the suit property. Undisputedly, the suit property belonged to Punjab Wakf Board, as even reflected in the documents Ex.P1, Ex.P2, Ex.PW1/A, Ex.PW1/B and Ex.PW1/C. The plaintiff in support of his claim, had examined Sahabudin Rent Controller (PW1) and Niaz Mohamad (PW2). The testimony of Sahabudin (PW1) did not support the claim of the plaintiff. In fact, he proved that a land measuring 5170 sq. yards was leased out to Sudesh Kumar, who to left an area measuring 588.65 sq. yards, in favour of Vivek Malik, vide Ex.PW1/C. He also testified that A1, A2, A3, A4, A5, A6, A7 i.e. passage was in fact left by the tenant of the Wakf Board. And Ex.PW1/A, dated 31.03.1991, was a final plan. Further, Vivek Malik and Sandeep etc. had left the passage for their own use in the property of Wakf Board, as depicted in Ex.PW2/A. He also testified that the passage in question could not be used by any other person except the tenant of the Board, as the property belonged to the Board. And if at all, defendant intended to raise any construction thereon, he could do so by obtaining No Objection Certificate from the Wakf Board. Accordingly, he maintained that the plaintiff had no right to use the suit property i.e. the disputed passage. It was found that the land in dispute was bounded on both the sides by the land of Punjab Wakf Board. So much so, plaintiff had admitted that this land was given by Sudesh Kumar to Vivek Malik and it was Vivek Malik and Sudesh Kumar, who had left this area as a passage. Even, Niaz Mohamad (PW1/A) admitted in his cross -examination that there was no order issued by the Wakf Board, vide which any passage was left for Chhatarawas.