Punjab-Haryana High Court
Mohinder Kaur And Ors vs Mohinder Singh And Ors on 23 August, 2013
R.S.A. No. 3279 of 2013 (O&M)
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IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
R.S.A. No.3279 of 2013
Date of decision:-23.08.2013
Mohinder Kaur and ors. ....... Appellants
Versus
Mohinder Singh and ors. ........ Respondents
CORAM:HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present: Mr.Kartik Gupta, Advocate
for the appellants.
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Vijender Singh Malik, J.
This is a Regular Second Appeal brought by the plaintiffs, who have lost before both the courts below by way of judgment and decree dated 14.03.2013 passed by learned Additional Civil Judge (Senior Division), Hoshiarpur and judgment and decree dated 05.08.2013 passed by learned Additional District Judge, Hoshiarpur.
A suit was brought by the plaintiffs for separate possession of 5 marlas 1 sarsahi land out of 2 kanals 11 marlas of land excluding super structure standing thereon comprised in khewat No.1065, khatauni No.1265 and khasra no.105/1(2-5), Kumar Dinesh 2013.08.29 13:02 I attest to the accuracy and integrity of this document High Court,Chandigarh R.S.A. No. 3279 of 2013 (O&M) -2- 105/2(0-6) situated in revenue estate of village Premgarh, Tehsil and District Hoshiarpur as per jamabandi for the year 2006-07, now falling within the municipal limits of Hoshiarpur whereupon building of New Raj Theatre exists and for permanent injunction restraining the defendants from taking possession of the suit property from the plaintiffs till it is partitioned by metes and bounds. The case of the plaintiffs is as under:-
The defendants alongwith one Gurnam Kaur had been joint owners of the property in question. It was earlier on lease with Kesho Ram and others, who had constructed building over it. Surinder Pal Singh, predecessor in interest of the plaintiff purchased super structure and machinery lying on disputed property in the shape of theatre named New Raj Theatre, Hoshiarpur. Surinder Pal Singh also purchased land measuring 5 marlas 1 sarsahi from Gurnam Kaur vide sale deed dated 19.08.1998. The defendants filed an application for ejectment against their tenants. The said application was allowed. Neither the plaintiffs nor their predecessor in interest was party to the said ejectment proceedings. The defendants started executing order of ejectment in the court. The plaintiffs filed objection petition in the said proceedings claiming that they are not bound by the ejectment order. The objection petition was dismissed on 05.11.2009. The Kumar Dinesh 2013.08.29 13:02 I attest to the accuracy and integrity of this document High Court,Chandigarh R.S.A. No. 3279 of 2013 (O&M) -3- plaintiffs then preferred an appeal against the said order, which could not succeed, though plaintiffs were held to be co-owner in the land underneath the building of the cinema. The appeal preferred by the plaintiffs upto Hon'ble Supreme Court of India met with the same fate. In order to bring an end to disputes with the defendants, the plaintiffs have filed present suit for partition of disputed property excluding super structure standing thereon.
The suit has been resisted by the defendants. They have claimed that super structure and machinery over disputed land was installed by Kesho Ram and others, who were tenants therein. It is further claimed that those tenants were ordered to be ejected from the suit land and were directed to remove all the building material and machinery lying therein. The plaintiffs managed to take illegal possession of entire building, after passing of ejectment order. They are bound by the order passed on 28.02.1987. They have admitted that Gurnam Kaur, co-sharer in disputed land, sold land measuring 5 marlas vide sale deed dated 19.08.1998. It is denied that she had delivered possession of land to the plaintiffs because she herself was not in possession of any portion of the disputed land. It is further averred that the plaintiffs are bound to surrender possession of the land to defendants after removing the super structure.
Kumar Dinesh 2013.08.29 13:02 I attest to the accuracy and integrity of this document High Court,Chandigarh R.S.A. No. 3279 of 2013 (O&M) -4-
On the pleadings of the parties, learned trial court settled the following issues:-
"1- Whether plaintiffs are co-owners in the land underneath the cinema building i.e. suit land?OPP 2- Whether plaintiffs are entitled to separate possession of 5 marlas 1 sarsahi out of land measuring 2 kanals 11 marlas, as detailed in head note, by metes and bounds?OPP 3- Whether suit of plaintiffs is not maintainable?OPD 4- Whether plaint of suit is liable to be rejected for want of site plan?OPD 5- Whether plaintiffs are barred from filing the suit due to dismissal of objection under order 21 Rule 98 of Code of Civil Procedure?OPD 6- Whether suit of plaintiffs is pre-mature?OPD 7- Whether plaintiffs are in illegal possession being the transferees of ejected tenants?OPD 8- Relief."
The parties led their respective evidence. Hearing learned counsel for the parties, learned trial court found the plaintiff to have succeeded in proving that their predecessor-in-interest named Surender Pal Singh had purchased land measuring 5 marlas 1 sarsahi from Gurnam Kaur vide sale deed dated 19.08.1998. The suit of the plaintiffs was found maintainable and hence their suit was also not found to lack cause of action. It was also found that Kumar Dinesh 2013.08.29 13:02 I attest to the accuracy and integrity of this document High Court,Chandigarh R.S.A. No. 3279 of 2013 (O&M) -5- they could not be termed as trespasser in the suit property. The suit is also found to be maintainable in the present form. Finding of all the issues went in favour of the plaintiffs and their suit for partition of their share in the disputed land had been allowed and a preliminary decree was ordered to be passed in favour of the plaintiffs and against the defendants to the extent of their share in the said land. However, coming to the relief of permanent injunction sought by the plaintiffs, it has been observed by learned trial court that the ejectment proceedings have already attained finality and as the defendants are taking possession of the suit property from the plaintiffs in due course of law, the relief of injunction cannot be granted in favour of the plaintiffs. It has been held that the defendants cannot be debarred from reaping fruits of ejectment order which was passed in their favour much prior to the purchase of the share in the land by the predecessor-in-interest of the plaintiffs. Therefore, the relief of permanent injunction was declined.
Aggrieved by the aforesaid judgment of declining the relief of permanent injunction, the plaintiffs went in appeal, which has been dismissed for similar reasons by learned Additional District Judge, Hoshiarpur vide judgment and decree dated 05.08.2013.
Kumar Dinesh 2013.08.29 13:02 I attest to the accuracy and integrity of this document High Court,Chandigarh R.S.A. No. 3279 of 2013 (O&M) -6-
Learned counsel for the appellants has submitted that the appellants are owners of 5 marlas 1 sarsahi land by purchase from Gurnam Kaur. According to him, the sale deed in this regard is Annexure- A2. According to him, now the plaintiffs have become co-sharers in the suit property and are in possession thereof. He has further submitted that only preliminary decree has been passed in this case and time would be taken in passing of the final decree and till then the plaintiffs can protect their possession over the suit property.
It appears that the plaintiffs are taking rounds of litigation with a view to perpetuate their possession over the suit property. Kesho Ram and others were tenants over the suit property, on which they were authorized to raise super structure and install the machines to run New Raj Theatre. The ejectment proceedings were brought against them and they were finally ordered to be ejected therefrom. When execution application was filed, objections were brought by the plaintiffs and their predecessor-in-interest and those objections have also been dismissed upto the Hon'ble Supreme Court of India. When they lost the second round upto the Hon'ble Supreme Court of India, they thought of another way of remaining in possession by filing a suit of separate possession by way of partition and permanent Kumar Dinesh 2013.08.29 13:02 I attest to the accuracy and integrity of this document High Court,Chandigarh R.S.A. No. 3279 of 2013 (O&M) -7- injunction.
The plaintiffs occupy two different positions. They are in possession of the suit property by way of successors of Kesho Ram and others, who have been ejected from the same. They were also directed to remove their super structure and remove their machinery. The plaintiffs neither want to remove the super structure nor the machinery from the suit property and want to continue operating the New Raj Theatre, which is not permissible to them. Once they comply over the ejectment order and remove their structure and machinery from the suit property, they may claim themselves to be joint owners in possession of the suit property and may reap the fruits of preliminary decree passed in their favour.
In these circumstances, I do not find the plaintiffs- appellants to be entitled to the relief of permanent injunction. They are bound to comply with the orders of ejectment. Hence, learned courts below have rightly declined the relief of permanent injunction to the appellants. In my opinion, no questions of law much less substantial questions of law arise in this appeal.
The regular second appeal is consequently dismissed.
( Vijender Singh Malik ) 23.08.2013 Judge dinesh Kumar Dinesh 2013.08.29 13:02 I attest to the accuracy and integrity of this document High Court,Chandigarh