Punjab-Haryana High Court
Surjit Singh And Another vs Surinder Kaur And Others on 10 May, 2014
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 7631 of 2011 (O&M)
Date of Decision : May 20, 2013
Surjit Singh and another
......Petitioners
Versus
Surinder Kaur and others
....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Akshay Bhan, Advocate
for the petitioners.
None for respondents No.1 to 4.
Mr. R.S. Bhatia, Advocate
for respondents No. 5 and 6.
T.P.S. Mann, J.
Order dated 31.10.2011 (Annexure P-8) passed by Civil Judge (Junior Division), Chandigarh while allowing the application of respondents No. 5 and 6 under Order I Rule 10 read with Section 151 C.P.C. stands challenged by the plaintiffs by filing the present revision under Article 227 of the Constitution of India.
Suit has been filed by the petitioners under Section 6 of the Specific Relief Act, 1963 for restoration of possession of a portion of House No.1268, Sector 8-C, Chandigarh as, according Civil Revision No. 7631 of 2011 (O&M) -2- to them, they were dis-possessed by the defendants, i.e. respondents No. 1 to 4, herein. According to them, the suit property, i.e. House No. 1268, Sector 8-C, Chandigarh was owned by Smt. Veerawali, who was their grandmother. The said property, by way of family adjustment and partial sale, was transferred to Harcharan Singh s/o Nidhan Singh. The consideration amount was nominal as Harcharan Singh was also the cousin of the petitioners. Rather, it was he who had initiated the construction over the suit property but as he had a small family and limited resources in comparison to the father of the petitioners, a portion of the suit property was returned to the petitioners by way of deemed sale and possession in lieu of funds and material for the construction of the house. The possession continued with the predecessor-in-interest of the petitioners from 1960-61 alongwith the LRs of N.P. Singh and Jasbir Singh, who was then alive and, thereafter they continued to be in occupation as owners of the said portion of the property re-transferred by way of possession in the year 1960-61. Now, the petitioners and their co-owners were in continuous and absolute possession of the said property to the exclusion of owners of the suit property as the latter were aware of the said fact and had never objected to the ownership or possession of the petitioners or their co- owners in the said property. On the portion measuring 6 marlas consisting of garage, store-room with attached kitchens and bath- Civil Revision No. 7631 of 2011 (O&M) -3- rooms, besides the servant-room and bath-room beneath the stairs were constructed. The possession of the petitioners alongwith Jasbir Singh and LRs of N.P. Singh was continuous, which fact was communicated to the Estate Office by Jasbir Singh, brother of the petitioners through his letter dated 21.11.2006. The petitioners, alongwith other co-owners, were using the store-room behind the garage alongwith appurtenant bath-room and kitchen for storage purposes for the last many years and the possession of the garage and the servant room alongwith appurtenant bath-rooms was also joint as the garage was earlier on rent. The petitioners lastly used the store room behind the garage on 23.2.2010 and, thereafter, petitioner Surjit Singh had to go out for some time and returned on 24.3.2010 and during the interregnum, petitioner Sukhbir Kaur also did not use the room. On 28.3.2010, the petitioners learnt that the lock of the store-room behind the garage had been changed and the goods of the petitioners removed. The servant-room was being used by the servant who was also working as a gardener in the house and the servants' bathroom was being used by all servants. The passage and the open areas were open and the petitioners had free access and used the said open area/passage for ingress into and egress from the portion of the house as well as to the first floor of the main house, besides the rear courtyard. In the absence of the petitioners, the defendants committed theft in the Civil Revision No. 7631 of 2011 (O&M) -4- store-room behind the garage and removed the articles of the petitioners although some articles of petitioner Sukhbir Kaur were still lying there. Even the matter was reported to the police but to no effect. Hence, the suit for restoration of possession.
Upon service, all the defendants, i.e. respondents No.1 to 4 put in appearance and filed their reply dated 20.7.2010. Subsequent thereto, application dated 18.9.2010 (Annexure P-6) was filed by respondents No. 5 and 6 for being made party to the suit on the ground that the aforesaid house was purchased by Harcharan Singh s/o Nidhan Singh from Smt. Veerawali vide registered sale deed dated 21.11.1960. Said Harcharan Singh had died and his property inherited by his wife and three daughters. Two of them, i.e. Jinder Pal Kaur and Binder Pal Kaur, who filed the aforementioned application under Order I Rule 10 read with Section 151 C.P.C. averred therein that the petitioners and respondents No. 1 to 4 had not disclosed the correct factual position and with an intention to illegally grab the aforesaid portion of House No. 1268, Sector 8-C, Chandigarh had mis-stated the facts in the plaint. Respondents No. 5 and 6, alongwith Gobind Kaur and Manu were owners of the property but without impleading them as a party, the petitioners had filed the suit despite having no right, title or interest in the same. Reply was filed by the petitioners wherein they stated that the application was mis-conceived and filed for the sole purpose of Civil Revision No. 7631 of 2011 (O&M) -5- defeating their rights. Moreover, the petitioners had only filed suit for restoration of the possession against respondents No. 1 to 4 who had dispossessed them from the joint ownership of the property and, therefore, no relief, whatsoever, was being sought against any third party. It was also stated that respondents No.5 and 6 were neither necessary nor proper parties to the suit and the application was filed in collusion with respondents No. 1 to 4.
As mentioned above, learned trial Court while taking into consideration that the possession of House No. 1268, Sector 8-C, Chandigarh was involved and respondents No. 5 and 6 were co-owners of the property, held that they were necessary party in order to enable the Court to factually and completely adjudicate upon and settle all the questions involved in the suit.
Learned counsel for the petitioners has submitted that the suit was filed by the petitioners under Sections 6 of the Specific Relief Act for restoration of possession and as respondents No.5 and 6 were not in possession of the portion of the suit property nor had dispossessed the petitioners from the same, the application filed by them under Order I Rule 10 C.P.C. for being impleaded as defendants in the suit was not maintainable. On the other hand, learned counsel for respondents No. 5 and 6 submitted that his clients alongwith others were owners of the suit property and, therefore, required to be impleaded as party-defendants in the suit.
Civil Revision No. 7631 of 2011 (O&M) -6-
Having heard counsel for the parties, this Court is of the considered view that the trial Court committed an error by allowing the application of respondents No. 5 and 6 filed under Order 1 Rule 10 read with Section 151 C.P.C. As the suit was filed under Section 6 of the Specific Relief Act, 1963, it is immaterial that respondents No. 5 and 6 are also owners of the suit property. In the suit filed by the petitioners, the limited issue involved is as to whether the petitioners were in possession and had been dispossessed of the suit property. The Calcutta High Court in the case of Raj Krishna Parul Vs. Muktaram Das, (1910) 12 Calcutta Law Journal 605 while interpreting Section 9 of the Specific Relief Act, 1877 (equivalent to Section 6 of the present Act, 1963) held that the sole point for determination would be as to whether the plaintiffs were in possession of the disputed property and whether they had been deprived of such possession by the defendants, who stood arrayed as such in the suit itself. The relevant observation is as under :-
"In a suit commenced under Section 9 of the Specific Relief Act, the sole point for determination will be, whether the plaintiffs were in possession of the disputed property within six months previous to the institution of the suit and whether they had been deprived of such possession by the defendant otherwise than in due course of law. It is immaterial, if the plaintiffs were in possession, that such Civil Revision No. 7631 of 2011 (O&M) -7- possession was without title. What the plaintiff has to prove is possession of the disputed property and not mere isolated acts of trespass over that property.
In order to entitle the plaintiff to succeed on the ground of possession, he must prove, firstly, that he exercised acts which amounted to acts of dominion; the nature of these acts of dominion varies with the nature of the property; secondly, that the act of dominion was exclusive. If the occupation by the plaintiff, as indicated by those acts, has been peaceable and uninterrupted and has extended over a sufficient length of time, the inference may properly be drawn that the plaintiff was in possession."
Relying upon the judgment in the case of Raj Krishna Parul (supra), the Hon'ble Supreme Court in Sudhir Jaggi Vs. Sunil Akash Sinha Choudhury, (2004) 7 SCC 515 held that the plaintiff therein was wrongly dispossessed by the defendants therein without following due process of law and hence the suit was maintainable under Section 6 of the Specific Relief Act, 1963. Moreover, the question of title could not be decided in a suit under Section 6 of the 1963 Act and the affected party could file a suit for establishing his title and for recovery of possession. In the case in hand, the case of the plaintiffs/petitioners was that they were in possession of the suit property and were Civil Revision No. 7631 of 2011 (O&M) -8- dispossessed by the defendants/respondents No. 1 to 4. They nowhere pleaded in their suit filed under Section 6 of the Specific Relief Act, 1963 that present respondents No. 5 and 6 had dispossessed them from the same. In a way, the petitioners did not seek any relief against respondents No. 5 and 6 when they filed their suit under Section 6 of the Specific Relief Act, 1963. On the other hand, respondents No. 5 and 6 while asserting title to the suit property, filed the application under Order 1 Rule 10 read with Section 151 C.P.C. for being impleaded as defendants alongwith respondents No.1 to 4 which plea could not be considered in the present suit filed by the petitioners. Of course, it would be open to respondents No. 5 and 6 to file substantive suit to establish their title to the suit property.
For the reasons stated above, the revision is accepted and the impugned order passed by the trial Court while allowing the application of respondents No. 5 and 6 under Order I Rule 10 read with Section 151 C.P.C. is set aside.
( T.P.S. MANN )
May 20, 2013 JUDGE
satish
Satish Kumar
2014.01.10 17:34
I attest to the accuracy and
integrity of this document