Punjab-Haryana High Court
Smt. Jasbir Kaur And Others vs Smt. Varinder Kaur And Others on 2 February, 2012
Author: G. S. Sandhawalia
Bench: G.S.Sandhawalia
RSA No.2839 of 2011 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2839 of 2011
Date of decision: 2.2.2012
Smt. Jasbir Kaur and others ....Appellants
Vs.
Smt. Varinder Kaur and others ....Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Vijay Lath, Advocate for the appellants.
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G. S. SANDHAWALIA, J.
Civil Misc. No.608-C of 2012 Prayer made in this application is for preponing the date and to hear the appeal, since warrant of possession has been issued.
The application is allowed in view of the averments made in the application, which are supported by affidavit and hearing of the appeal is preponed, for today.
Regular Second Appeal No.2839 of 2011
1. The present appeal has been filed by the defendants aggrieved against the concurrent findings of both the Courts below whereby the suit for mandatory injunction for possession directing the defendants to hand over the vacant possession of the portion shown red in the site plan attached which is half portion of the house No.43-L, Block A, Model House, Jalandhar was allowed. The present case is a case of two daughters in law fighting over their rights of the property which has devolved to them through their mother-in-law Rajinder Kaur. RSA No.2839 of 2011 -2-
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2. The facts of the case are that the plaintiff had averred in the plaint that house in question as mentioned above was purchased by Rajinder Kaur wife of Gurdial Singh vide sale deed dated 6.5.1965. Rajinder Kaur had two sons, namely, Harinder Pal Singh and Jaspal Singh. The plaintiffs are the wife and children of Harinder Pal Singh and the contesting defendants No.1 to 3 are the wife and daughters of late Jaspal Singh. Rajinder Kaur during her life time executed a will on 10.4.1996 and according to the will she bequeathed her property to Harinder Pal Singh, husband and father of the plaintiffs half share towards southern side shown in red in the site plan and to Jaspal Singh, husband and father of the defendants half share towards the northern side shown green in the site plan, who are present appellants. It is, however, averred that the will was already implemented and the defendants were in possession of the property as a licencee on the basis of will. Rajinder Kaur died on 19.6.1997 and thereafter Harinder Pal Singh died on 30.8.2002 and the defendants have been asked to vacate the portion but the defendants were putting off the matter on one pretext or the other. It was, accordingly, pleaded that plaintiffs had already terminated the licence and the defendants have now no right to remain in possession and they were liable to hand over vacant possession on the basis of will executed by Rajinder Kaur. Defendants No.4 and 5 were stated to be proforma and had admitted the rights of the plaintiff. A legal notice terminating the licence had also been served upon the defendants but they refused to vacate the premises and the plaintiffs have no other remedy except to file the present suit.
3. In the written statement filed by the defendants no.1 to 3, it was held out that answering defendants are owners in possession of the suit property and never been licencees in the suit property and plaintiffs RSA No.2839 of 2011 -3- **** were estopped from filing the present suit by their act and conduct. On merits, execution of the will was admitted regarding bequeathing the property to both the sons and that both of them had expired and thus, the legal heirs had inherited their respective rights. The site plan attached with the plaint was also denied as being incorrect. However, implementation of the will was denied and that the defendants were residing in the said portion as licencees. It was alleged that after the death of Rajinder Kaur Jaspal Singh, husband of defendant no.1 and father of defendants no.2 and 3 in a family settlement had agreed to compensate the plaintiffs in lieu of their half share in the suit property and made payment of Rs.2 lacs in the presence of respectables of the family and friends and the plaintiffs had handed over the possession of the half share of their property to the husband of defendant no.1 of which after his death they had become owners. The said settlement was alleged to have been made in the month of February, 1998. Accordingly, it was held out that defendants were not in possession of the suit property as licencees but were in possession of the property as owners. The said written statement was controverted by filing a replication and it was held out that the defendants were licencees on the portion of the house shown as red.
4. On the pleadings of the parties, the trial Court framed the following issues:-
1) Whether the plaintiffs are entitled to the relief of mandatory injunction?OPP
2) Whether the suit is not maintainable in the present form?OPD
3) Whether the defendants are owners in possession of the suit property?OPD
4) Whether the plaintiffs are estopped from filing the RSA No.2839 of 2011 -4- **** present suit from their own acts and conduct?OPD
5) Relief"
5. The trial Court on the basis of the pleadings and evidence on record came to the conclusion that the most important issue was the issue of ownership and after taking into consideration the evidence of the plaintiff Varinder Kaur and the defendant Jasbir Kaur along with evidence of Amarjit Singh DW-2 held that property was originally owned by Rajinder Kaur and she executed a will dated 10.4.1996 in favour of Harinder Pal Singh and Jaspal Singh. The execution of the will was admitted by both the parties and the fact that both the beneficiaries Harinder Pal Singh and Jaspal Singh had died. The plaintiffs were the legal heirs of Harinder Pal Singh whereas defendants were the legal heirs of Jaspal Singh. Keeping in view the issues raised by the defendants, the trial Court was of the opinion that stand of the defendants that they had purchased the property after paying of Rs.2 lacs would not make them owners as there was no sale deed in their favour. Keeping in view the evidence on record and pleadings the trial Court came to the conclusion that the defendants were residing in the house and were licencees in the said house and they were in permissible possession of that portion of the house and the plaintiffs who were the owners were entitled for possession and a mandate could be issued in their favour when their licence had been revoked by the plaintiffs. The maintainability of the suit was not pressed before the trial Court. Accordingly, on the issue of the estoppel, in the absence of any evidence right of the plaintiffs to file the suit was upheld and the suit was decreed with direction that the portion shown in red in the site plan would be handed over to the plaintiffs within three months failing which they were entitled to take possession through the Court and also entitled to recover use and occupation charges as prevalent in the market from the defendants. RSA No.2839 of 2011 -5-
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6. The appeal was filed before the Lower Appellate Court which has been dismissed on 8.3.2011 and aggrieved against the said judgment and decree passed by the District Judge, Jalandhar, the present Regular Second Appeal has been filed.
7. Counsel for the appellants contended that once there was an exclusive possession of the defendants, the suit for mandatory injunction would not lie and the remedy was to file a proper suit for possession. It was also contended that the fact there was a creation of licence by the mother-in-law Rajinder Kaur was at variance with the statement of the plaintiff Varinder Kaur and there was no proof of the appellants being licencees in the property and the present suit for mandatory injunction was not maintainable. The said submission of the counsel though attractive is not acceptable in view of the fact of the relationship between the parties. A perusal of the site plan produced by the counsel for the appellants goes on to show that the property in question has been depicted in the site plan Ex. P3 and proved by the plaintiffs though the site plan was described as being incorrect but nothing else was placed on record to show that site plan was at variance with the one placed on record. A bare glance at the site plan shown that the property in red which is situated on the southern side of the property of the defendants is a vacant plot and only a toilet has been constructed on one corner. Constructed portion shown in green towards northern side is in possession of the defendants and the cross examination of the defendants, the appellant no.1 had admitted that site plan as correct. It is an admitted fact that parties are closely related being daughters-in-law of late Rajinder Kaur and their husbands have expired. The will by which both the parties had got a right being legal heirs of the sons of Rajinder Kaur is also admitted and Rajinder Kaur had ensured that both the sons got an equal share in the said plot. The ownership of the RSA No.2839 of 2011 -6- **** plaintiffs by virtue of will could not have been denied by the defendants through the escape route by alleging that they had become owners in possession by paying Rs.2 lacs to Harinder Pal Singh as alleged but it was never proved and even otherwise after the death of Rajinder Kaur on 19.6.1997 if any transfer of immoveable property had taken place, the same could have only been sold by way of registered sale deed which had been missing in the present case. The allegations that the defendants' father Jaspal Singh had made a payment of Rs.2 lacs in the presence of respectables has not been proved and both the Courts below concurrently found that the defendants have failed to prove that they have become owner of the portion in red as claimed by them in the written statement. Defendant No.1 has stated that amount of Rs.2 lacs was given to some other person at the instance of Harinder pal Singh. Once there were two separate portions given to both the sons, the remedy of filing a suit for partition as argued before the Lower Appellate Court was rightly rejected and similarly the right of filing of suit for declaration also did not arise in view of the admission of the parties that the will gave half share to Harinder Pal Singh. The plea of the counsel for the appellants that a suit for possession should have been filed and not for mandatory injunction is also without any basis in view of the relationship between the parties as defendants were just using the vacant premises and their possession was permissive merely as a licencees and it has come on record that after the death of Rajinder Kaur the husband of plaintiff no.1 had permitted his brother's family to continue in possession and it was only on his death on 30.8.2002, thereafter the defendants had been asked to hand over the vacant possession which led to the present litigation. In such circumstances, the suit for mandatory injunction asking the defendants to hand over vacant possession was very much maintainable and admittedly RSA No.2839 of 2011 -7- **** this plea was never agitated before the trial Court which would be clear from the findings returned on issue no.2 as the maintainability of the suit was not questioned. This Court in Sohan Singh Vs. Piara Singh 2000 (3) PLR 255 in similar circumstances where mandatory injunction had been granted to one of the brother while noticing the relationship of parties had held that it is not necessary to file a regular suit for possession. The relevant paras reads as under:-
"8. The case set up by the plaintiff before the trial court was that he was in adverse possession. It is the common case of the parties that the house in dispute was purchased in the name of defendant No. 2. There is a close relationship between the plaintiff and defendant No.1. They are real brothers. Defendant No. 2 is wife of defendant No. 1. The case of the defendants is that the possession which was given to the plaintiff was per- missive and for the specific purpose to perform the marriage of his daughter. In view of the close proximity of relationship between the plaintiff and defendant No. 1, it has to be proved by the plaintiff by leading sufficient evidence that his possession was hostile, adverse and to the knowledge of the defendants. Both the courts have rightly come to the conclusion that the plaintiff has failed to establish his adverse possession. The submission which was raised by the counsel for the appellant before me is that the courts below committed an error when a decree of possession in favour of the defendants and against the plaintiff was granted. The counsel submitted that it was obligatory on the part of the defendants to file a regular suit for possession by paying ad valorem court fee on the market value of the property and RSA No.2839 of 2011 -8- **** therefore, the relief cannot be granted to the defendants in the shape of mandatory injunction.
9. I do not subscribe the argument of the counsel for the appellant because a decree for mandatory injunction can always be passed against a licensee whose possession is permissive. It is not necessary on the part of the licensor to file a regular suit for possession by paying the court fee on the market value of the property. Once the possession of the plaintiff was held to be permissive, the counter claim has been rightly decreed by the courts below."
8. That a perusal of notice dated 23.2.2005 Ex. P3/1 would go on to show that the notice was also served upon the defendant and they were asked to hand over the vacant possession to the plaintiff and no reply was given to this notice by the defendants who choose to contest the suit on a fresh ground altogether by raising the question of title on the basis of paying of Rs.2 lacs which has been found by both the Courts below as not having been proved.
9. Keeping all these factors in mind, no question of law much less substantial question of law arises for consideration by this Court in the present Regular Second Appeal, the same is dismissed in limine.
(G.S.SANDHAWALIA) JUDGE 2.2.2012 Pka