IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-3736-2017 (O&M) Reserved on: 23.04.2026 Pronounced on : 21.07.2026 Bawa Building Materials and another ....Appellants V/s Jalandhar Improvement Trust .…Respondent CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL Argued by: Mr. C.L. Sharma, Advocate, for appellant No.2(i), 2(ii) and 2(iii). Mr. Sandeep Khunger, Advocate, for the respondent. *** VIKRAM AGGARWAL, J. This is defendants’ appeal filed against the judgment and decree dated 16.02.2017 passed by the Court of Additional District Judge, Jalandhar, dismissing the appeal filed against the judgment and decree dated 31.07.2015 passed by the Court of learned Civil Judge (Jr. Divn), Jalandhar, vide which the suit of the plaintiff for recovery of mesne profits and mandatory injunction was decreed. 2. For the sake of convenience and clarity, parties shall be referred to as per their original status. 3. The plaintiff (Jalandhar Improvement Trust) instituted a suit for recovery of mesne profits @ Rs.10,000/- per month from March 1990 for an area measuring 121 ft. 6 inches into 43 ft. 6 inches (fully described in the plaint) situated in the 110 acres scheme of the plaintiff (hereinafter referred to as the suit property). Mandatory injunction directing the defendants (Bawa Building Materials) to remove the construction material (malba) from VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document RSA-3736-2017 (O&M) -2- the suit property was also sought. 3.1 The case of the plaintiff was that it had promulgated its 110 Acre Development Scheme, notification under Section 36 of the Punjab Improvement Trust Act, 1922 (for short the “1922 Act”) having been issued on 03.09.1974 and that under Section 42 having been issued on 06.08.1975. Award was announced by the Collector on 03.08.1976 and possession of the entire land was delivered to the plaintiff by the Collector. It was stated that the plaintiff had disposed of some areas by way of laying roads, utilising the same for common purposes, allotment and sale of plots etc. whereas, other areas remained unutilized. 3.2 Around March 1990, the defendants are stated to have instituted a suit for permanent injunction claiming that they were in possession of 5½ marlas of land for the last two years. Interim injunction was granted in their favour. The suit was stated to be pending. However, an amendment was sought and was allowed raising the claim of the plaintiffs therein to possession over 25½ marlas instead of 5½ marlas and it was stated that the said area was in possession of the plaintiffs therein for 25 years. 3.3 It was, therefore, claimed that between 1998 and 1996, the defendants had encroached upon 25½ marlas of land and were in illegal possession of the same, out of which the possession of 1 kanal of land had been taken during the possession of the suit filed earlier for 5½ marlas. 3.4 It was averred that the suit property belonged to the plaintiff and was to be used for public purposes. Its worth was stated to be Rs.40 lakhs at that time. It was averred that Rs.10,000/- per month could easily be fetched as rent. 3.5 Under the circumstances, the suit was instituted claiming mesne profits @ Rs.10,000/- per month from March 1990 to the date of valuation VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document RSA-3736-2017 (O&M) -3- of the area and the defendants were called upon to vacate the suit property and deliver possession of the same to the plaintiff. 4. The suit was opposed by the defendants. Certain preliminary objections as regards maintainability, the plaintiff not being the owner in possession of the suit property, cause of action, estoppel, the plaintiff not having approached the Court with clean hands etc. were raised. It was averred that the suit property was in exclusive possession of the defendants for the last more than 20-25 years and the same was open, hostile and without any interruption or interference from any side. The plea of adverse possession was also, therefore, raised. On merits also, a similar stand was taken. 4.1 No replication to the written statement was filed by the plaintiff. 5. From the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is owner of the land in dispute as prayed for?OPP 2. Whether defendants are in illegal possession of the said land?OPD 3. Whether plaintiff is entitled to mandatory injunction as prayed for?OPP 4. Whether plaintiff is entitled to mesne profits qua the land in dispute, if so at what rate?OPP 5. Whether suit is not maintainable in the present form?OPD 6. Whether plaintiff is stopped by his act and conduct from filing this suit?OPD 7. Whether the present suit is barred by Order 2 Rule 2 CPC?OPD 8. Relief.” 6. Parties led their respective evidence. The trial Court decreed the suit filed by the plaintiff and the appeal against the judgment and decree of the trial Court was also dismissed by the first Appellate Court, leading to the filing of the present second appeal by the defendants. VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document RSA-3736-2017 (O&M) -4- 7. Learned counsel for the parties were heard. 8. It was strenuously urged by learned counsel for the appellants that both Courts have gravely erred in decreeing the suit. It was argued that no suit for mandatory injunction could have been maintained and only a suit for possession could have been filed. Learned counsel referred to the entire oral and documentary evidence led on the record of the case to bring home his point. It was also submitted that no quantum of mesne profits had been assessed by the trial Court but still the first appellate Court erroneously observed that the mesne profits of Rs.10,000/- per month assessed by the trial court were appropriate. It was further submitted that an application for demarcation had been filed before the first appellate Court which was never decided. Learned counsel also submitted that no Khasra numbers had been mentioned in the plaint and, therefore, the suit property was not identifiable. 9. Per contra, it was submitted by learned counsel for the respondent that there is no illegality in the findings recorded by both Courts. It has been argued that previously also in the suit filed by the defendants, there had been strong observations by a coordinate bench while deciding RSA-2208-2001 whereby, the possession of the defendants over the suit land had been found to be unauthorised. It was argued that the said order was upheld by the Apex Court. Learned counsel referred to the judgment of the High Court which is on record as Ex.PX. 9.1 It was also submitted that there was no requirement of filing a suit for possession as there was no cloud over the title of the plaintiff. As regards mesne profits, it has been submitted that a sum of Rs.10,000/- per month had been claimed in the plaint and the relief had been partly allowed by the trial Court. The first appellate Court only granted what was claimed in the plaint. It was held that under the circumstances, no interference is VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document RSA-3736-2017 (O&M) -5- called for in the judgments under challenge. 10. I have considered the submissions made by the learned counsel for the parties. 11. As regards the scope of second appeal, it is now a settled proposition of law that in Punjab and Haryana, second appeals preferred are to be treated as appeals under Section 41 of the Punjab Courts Act, 1918 and not under Section 100 CPC. Reference in this regard can be made to the judgment of the Supreme Court in the case of Pankajakshi (Dead) through LRs and others V/s Chandrika and others, (2016)6 SCC 157, followed by the judgments in the case of Kirodi (since deceased) through his LR V/s Ram Parkash and others, (2019) 11 SCC 317 and Satender and others V/s Saroj and others, 2022(12) Scale 92. Relying upon the law laid down in the aforesaid judgments, no substantial question of law is required to be framed. 12. The defendants have taken undue advantage of delay caused in legal processes. It is in unauthorised occupation of public property. In the initial suit filed by the defendants against the Jalandhar Improvement Trust, very strong observations were made by a coordinate Bench in RSA-2208- 2011 decided on 28.10.2024. The said findings are apposite to be reproduced:- “15. The bone of contention of learned senior counsel for the appellants is that when the plaint was ordered to be amended the matter was supposed to be decided on amended pleadings and the Court cannot fall back to the original plaint. I am of the view that in the circumstances of the case the above contention cannot be sustained. The evidence produced on record, on the basis of original plaint, cannot be completely ignored. Gursharan Singh the original plaintiff when stepped into the witness-box as PW-1 did not utter a word to state that he is in possession of the disputed property for more than 25 years. He rather relied upon site plan, Ex. P1, which was originally filed with the plaint and the VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document RSA-3736-2017 (O&M) -6- disputed property comprised of only a constructed room with an area measuring about 5½ marlas. It is pertinent to note that dimensions of the constructed property was not even mentioned in the site plan, Ex. P1, dated 28.02.1990. After amendment of the pleadings, Arunjit Kaur wife of late Gursharan Singh appeared in the witness-box as PW-6 and she not only relied upon fresh site plan Ex. P1/A dated 18.09.1996 but also tendered the original plan Ex. P1, comprising of one constructed room, in her affidavit, Ex.PW-6/A. 16. The entire evidence for supporting possession was created after institution of the suit, which bring out a clear case of manipulation in order to lay claim over the property belonging to a public body. xxx xxx xxx 28. It is not a case where there was dispute about the boundaries but a big chunk of land comprising 110 acres scheme of Improvement Trust is involved and as per site plan, Ex. D7, the area under encroachment is shown in yellow colour in the plan. This plan is prepared on the basis of voluminous record of Improvement Trust showing the chunk of land which is acquired. Ex. D-6 is the lay out plan of the development scheme of 110 acres scheme carving out different plots. It is very painful to note that righter allottees/purchasers of plots have been deprived of their right for a number of years. 29. Under the circumstances, it was for the appellants to bring on record the evidence that the disputed property did not form part of aforesaid khasra numbers or that it was not covered in the land that was acquired by the Improvement Trust in 110 acres scheme. xxx xxx xxx 34. Before parting with this judgment, it deserves to be noted that the civil suit filed by the Improvement Trust No. 148 of 1997 for recovery of the mesne profits was adjourned sine-die because of the pendency of instant case. The District Judge, Jalandhar be asked to direct the trial Court to take up the said civil suit on priority and proceed to decide the same expeditiously and preferably within a period of one year on receipt of copy of this judgment. With regard to observations of this Court while deciding the instant RSA where the relief of injunction has been refused, the Improvement Trust is well within its right and can remove the appellants from the property in dispute even by use of force.” 12.1 Notably, the coordinate Bench while noticing the illegality which had been committed by the plaintiffs therein (defendants herein) held that the Improvement Trust was well within its rights to remove the VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document RSA-3736-2017 (O&M) -7- plaintiffs therein from the suit property even by use of force. 13. Reverting to the facts of the case, the plaintiff was able to prove that the defendants had encroached upon acquired land and were in unauthorised possession of the same. There is a detailed discussion by both Courts on the said aspect. Adequate evidence was led to prove this fact, which had been taken note of by both Courts. I have not found any material on record which could have even prima facie suggested that the possession of the defendants over the suit land was permissive or authorised. 14. As regards the objection that a suit for possession should have been filed, keeping in view the fact that there was no cloud over the title of the plaintiff over the suit land, there was no requirement of filing a suit for possession and a suit for mandatory injunction could very well have been filed. A similar view was taken by this Court in the case of Mrs. Chand Soni v. Brig. R.M. Soni and others (RSA-3580-2013 and other two connected matters, decided on 23.01.2026). The said view was based upon the judgment of the Apex Court in the case of Sanjay Paliwal and another vs. Bharat Heavy Electricals Limited, 2026 AIR SC 549. 15. As regards mesne profits, a very nominal amount of Rs.10,000/- per month was claimed in the plaint. The trial Court did not quantify the amount but allowed the relief and passed a preliminary decree. The first appellate Court held that Rs.10,000/- per month was reasonable. The first appellate Court gave its reasons for the same also stating that the suit property was in possession of the defendants since 1990 and was located in a posh locality. It was held that defendants had raised construction and were not only having a residential house but were also carrying on the business of building materials and a car bazaar from the suit property. Merely because the first appellate Court held that the trial Court had rightly awarded VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document RSA-3736-2017 (O&M) -8- Rs.10,000/- per month whereas, actually it had not done so, would not make any difference because in any case, the appellate Court recorded its own findings as well. This court does not find Rs.10,000/- per month to be excessive from any angle. 16. The argument that an application for demarcation was moved but was not decided by the lower appellate Court is devoid of merit. Repeated demarcations were not required and there was no obligation upon the first appellate Court to have decided the application. Though it would have been more appropriate to decide the application but this in itself would not be a ground to remit the matter to the first appellate Court. 17. In view of the above, the appeal is found to be completely devoid of merit and is accordingly dismissed. Pending application(s), if any, shall also stand disposed of. (VIKRAM AGGARWAL) JUDGE Pronounced on :21.07.2026 vcgarg Whether speaking/reasoned: Yes/No Whether reportable: Yes/No VIKAS CHANDER 2026.07.22 16.45 I attest to the accuracy and integrity of this document