Punjab-Haryana High Court
Jai Parkash Sharma vs Satya Parkash Sharma on 17 September, 2014
Author: Inderjit Singh
Bench: Inderjit Singh
207
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1759 of 2012 (O&M)
Date of decision: September 17, 2014
Jai Parkash Sharma
...Appellant
Versus
Satya Parkash Sharma
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Amit Jain, Advocate
for the appellant.
Mr.Robin Dutt, Advocate
for the respondent.
****
INDERJIT SINGH, J.
Appellant Jai Parkash Sharma has filed this regular second appeal against Satya Parkash Sharma respondent challenging the judgment and decree dated 20.02.2009 passed by learned Civil Judge (Senior Division), Jagadhri, whereby suit was decreed and judgment and decree dated 17.02.2012 passed by learned Addl. District Judge, Yamuna Nagar at Jagadhri, vide which the appeal filed by the appellant was dismissed.
Notice of motion was issued and respondent appeared through his counsel and contested the petition.
The brief facts of the case are that Satya Parkash Sharma filed a suit against Jai Parkash Sharma for mandatory injunction VINEET GULATI 2014.09.30 16:47 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1759 of 2012 -2- directing the defendant to hand over the vacant and actual physical possession of House No.291, double storeyed constructed on plot No.5, fully shown in site plan attached with the plaint situated at Dashmesh Colony, Near Khalsa College, Munda Majra, Yamuna Nagar and further directing the defendant to pay the mesne profits for illegal use and occupation of the above-said house at the rate of `100/- per day from the date of filing of the suit and till the actual delivery of possession. It is stated in the plaint that plaintiff is owner of the house and he purchased the plot for a sale consideration of `3000/- vide sale deed dated 03.06.1980 from Prag Raj, who handed over the possession at the spot, after which plaintiff constructed his house over it. It is further stated that plaintiff was serving in Rajasthan and at the time of purchase of plot also he was working outside Yamuna Nagar and since house in dispute was vacant and defendant was in need of accommodation, he requested the plaintiff to give him the disputed house as licensee. Plaintiff accepted his request and handed over the house to the defendant as a licensee with the condition that defendant would hand over the vacant possession as and when plaintiff desires. Plaintiff now has retired and he requested the defendant to hand over the vacant possession but he refused to do so.
On the other hand, the case of the defendant in the written statement is that plaintiff is not owner of the disputed house and the defendant is owner in possession of the same and he also denied that he is a licensee. He further denied that plaintiff purchased plot vide VINEET GULATI 2014.09.30 16:47 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1759 of 2012 -3- sale deed dated 03.06.1980 but has alleged that defendant purchased it from Prag Raj for a sale consideration of `3000/- and on 01.06.1980 possession was delivered to him and sale deed was executed and registered on 03.06.1980 in the name of the plaintiff as benamidar. He further alleged that defendant brought up the plaintiff, provided education and married him in 1977 and plaintiff was not earning at that time and was dependent upon the defendant, who used to reside with the defendant in his joint family and Joint Hindu Family member. It is also stated that the defendant made construction over the plot by spending more than `3,50,000/- and plaintiff was not earning anything till he joined services in Rajasthan. It is further stated by defendant that plaintiff never raised any objection when defendant was raising construction over the said plot. He alleged that electricity meter, water and sewerage connections are in the defendant's name and he is in continuous possession for 12 years and hence suit of the plaintiff is barred.
Issues were framed. Both the parties produced their evidence. Learned Civil Judge (Senior Division) Jagadhri after discussing the law and evidence on record, decreed the suit for mandatory injunction and directed the defendant to hand over the actual and physical possession of the house to the plaintiff. An appeal was filed by the defendant and learned Addl. District Judge, Yamuna Nagar at Jagadhri dismissed the appeal.
At the time of arguments, learned counsel for the appellant again argued that he has purchased property in the name of the VINEET GULATI 2014.09.30 16:47 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1759 of 2012 -4- plaintiff and the appellant has raised construction over the plot and he is in possession of the same. Learned counsel for the appellant also argued that as per Section 60 of the Easements Act, 1882, the plaintiff has never objected and in that way also, now he cannot file the suit against the defendant.
From the record, I find that it is admitted fact between the parties that the sale deed is in favour of the plaintiff. There is no cogent evidence on record to show that this amount of `3000/- of the plot has been given by the defendant. Similarly, there is no cogent evidence on record to show that the house has been constructed by the defendant. Rather, statement of the plaintiff has been given in the grounds of appeal. The plaintiff in the chief-examination has stated that he constructed the house and he has given the cost of construction to his brother Jai Parkash. He also stated that he built four rooms on the plot in dispute and when construction of rooms was going on, he was visiting the place and was giving cost of construction to his brother. He further stated that thereafter he constructed five more rooms from time to time. The cross-examination has also been produced of this witness in the grounds of appeal. There is not even a suggestion to the plaintiff by the defendant's counsel that the house in dispute has been constructed by the defendant and not by the plaintiff. There is also no suggestion that the house was constructed by the defendant by spending money from his own pocket as owner. Otherwise also, these are the findings of fact, which have been given concurrently by the Courts below.
VINEET GULATI2014.09.30 16:47 I attest to the accuracy and authenticity of this document Chandigarh RSA No.1759 of 2012 -5-
As regarding the applicability of Section 60 of the Easements Act, I find that it is nowhere case of the defendant nor any evidence has been led that he constructed the house being a licensee. Therefore, Section 60 of the Easements Act will also not apply.
From the perusal of the record, I find that no substantial question of law arises in this regular second appeal. The findings given by learned Courts below are correct and as per law. Nothing has been pointed as to which material evidence has not been discussed by the Courts below nor anything is pointed out as to which material evidence has been misread by the Courts below. There is nothing on the record to show that the judgments and decree passed by the Courts below are perverse or against the law.
In view of the above discussion, I find that judgment and decree dated 20.02.2009 passed by learned Civil Judge (Senior Division), Jagadhri and judgment and decree dated 17.02.2012 passed by learned Addl. District Judge, Yamuna Nagar at Jagadhri in appeal are correct and as per law and the same are upheld.
Therefore, finding no merit in the present regular second appeal, the same is dismissed.
September 17, 2014 (INDERJIT SINGH)
Vgulati JUDGE
VINEET GULATI
2014.09.30 16:47
I attest to the accuracy and
authenticity of this document
Chandigarh