Punjab-Haryana High Court
Benaras Kaur vs The Deputy Secretary on 10 March, 2009
Author: Hemant Gupta
Bench: J.S. Khehar, Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Letters Patent Appeal No. 157 of 2007
Date of Decision: 10.03.2009
Benaras Kaur
... Appellant
Versus
The Deputy Secretary, Government of India, Department of
Rehabilitation, New Delhi and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE J.S. KHEHAR
HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Ms. Jai Shree Thakur, Advocate,
for the appellant.
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HEMANT GUPTA, J.
The present appeal is directed against the judgement dated 24.07.86 passed by learned Single Judge of this Court in CWP No. 3349 of 1981, filed by the petitioner. The said Writ Petition was decided alongwith RFA No. 1078 of 1980 and Cross Objection No. 137-CI of 1980 arising of a suit, wherein, the present appellant was impleaded as one of the defendant.
One Sarup Singh, brother of the present petitioner, filed a suit before learned Sub Judge 1st Class, Amritsar, claiming share in the rental income in property No. 53/1, Court Road, Amritsar. It was alleged that his father Saran Singh, was head of joint family. After partition of Country, the family shifted to India. The plaintiff Sarup Singh, executed a relinquishment deed agreeing to give up all rights in the family property including right to succession to the estate of his father except 1/7th share in the verified claim in immovable property for which application for purchase had been filed before the Additional Settlement Commissioner. The Additional Settlement Commissioner, vide order dated 26.07.1962 accepted the claim of the plaintiff to the extent of 1/8th share in the verified claim. Instead of using such verified claim, Saran Singh, father of plaintiff purchased evacuee property No. 53/1, Court Road, Amritsar. The plaintiff thus claims to be co-sharer in the said house by adjusting the verified claim. The defendants including the present appellant constructed nine shops on the property in dispute. Thus the plaintiff claims interest in the rental income of the property purchased by his father.
The appellant raised a plea of ownership by adverse possession in the written statement filed in the Civil Suit and that the suit has been filed 12 years after the death of Saran Singh. It was also pleaded that plaintiff Sarup Singh has executed release deed, thus, he was debarred from filing the suit. It was also pleaded that Saran Singh had purchased property in public auction and that the plaintiff has no right in the property. The said suit was decreed by the learned trial Court on 27.05.1980. The defendant-appellant filed Regular First Appeal No. 1078 of 1980, directed against the said judgement and decree.
The appellant herein filed Writ Petition No. 3349 of 1981 before this Court, challenging adjustment of Rs. 3102.17/- towards the price of the property and the sale certificate. The petitioner claimed that sale certificate be amended, so as to show that the petitioner alone is the owner of property No. 53/1, Court Road, Amritsar.
Both the writ petition and the Regular First Appeal filed by the defendant-appellant herein was dismissed, vide the order impugned in the present appeal.
Admittedly, the appellant has not filed any appeal, arising out of the civil suit, in which, the appellant was impleaded as defendant. The civil suit filed earlier in point of time was decided on merits, holding Sarup Singh-plaintiff, entitled to 1/7th share in the property. Therefore, the present appeal, arising out of the writ petition is not maintainable as no finding contrary to the findings by the learned single Judge in civil suit can be recorded. Interference in the present appeal will lead to contrary judgement in respect of the same issue, which is not permissible.
Consequently, the present appeal is dismissed in limine.
(HEMANT GUPTA) 10.03.2009 JUDGE Amodh (J.S. KHEHAR) JUDGE