Punjab-Haryana High Court
Smt. Salochna Devi vs Smt. Pushpa Kaushik And Others on 21 May, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1866 of 2011 (O&M) #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
RSA No.1866 of 2011 (O&M)
Date of Decision: 21.5.2012
Smt. Salochna Devi
....Appellant
Versus
Smt. Pushpa Kaushik and others
....Respondents
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Jagat Singh, Advocate for the appellant. JASWANT SINGH, J C.M.No.5253-C of 2011 After hearing learned counsel for the applicant-appellant and perusing the grounds of the application, which is supported by an affidavit, I find the reasons to be bonafide. Accordingly, the application is allowed and the delay of 73 days in re-filing the appeal is condoned.
RSA No.1866 of 2011 By filing the present appeal, the plaintiff-appellant has prayed for setting aside the impugned judgment and decree dated 19.3.2010 passed by the learned District Judge, Narnaul whereby her appeal filed against the judgment and decree dated 30.11.2007 passed by learned Civil Judge (Jr. Division), Mohindergarh dismissing her RSA No.1866 of 2011 (O&M) #2# suit, has been dismissed.
Brief facts of the case are that the plaintiff-appellant filed a suit for declaration and permanent injunction that the plaintiff is owner in possession of house No.BII /175/1 as described in the plaint on the basis of sale deed dated 7.1.1994 and the judgment and decree dated 2.4.1998 passed by the learned Rent Controller, Mohindergarh are illegal, void and not binding upon the rights of the plaintiff. Upon notice, the suit was opposed by defendant No.1-Shiv Dayal by filing written statement whereas respondent Nos.4 to 6 did not dispute the claim of the plaintiff, rather admitted the same. After hearing both the parties, learned trial Court dismissed the suit and on an appeal having been filed by the plaintiff-appellant, the same has also been dismissed by the learned appellate Court, hence the present second appeal.
After hearing learned counsel for the appellant, this court does not find any merit in the present appeal and the same deserves dismissal.
Learned counsel for the appellant argued that both the courts below have gravely erred while dismissing the suit of the plaintiff-appellant as there is sufficient material on record to prove that the plaintiff-appellant has become owner in possession of the house in dispute on the basis of sale deed dated 7.1.1994 and the judgment and decree dated 2.4.1998 passed by the learned Rent Controller is of no consequence as the plaintiff was not a party to that litigation.
A perusal of paper book reveals that initially Bal Balbhadar RSA No.1866 of 2011 (O&M) #3# Kaushik was the owner of the house in dispute and he had four sons, namely, Ram Kumar, Ram Partap, Lal Chand @ Ram Nath and Raghbir Parshad. Lal Chand died unmarried while Raghbir Parshad also remained unmarried and became ascetic and thus after the death of Bal Balbhadar, his two sons namely Ram Kumar and Ram Partap became owners in possession of the said house in dispute to the extent of one- half share each. It is alleged that Ram Kumar being eldest son and karta of the family sold his half share to Satya Dev son of Banwari Lal vide registered sale deed No.1209 dated 15.9.1986. Thus, Ram Partap became the exclusive owner of remaining half share of the house referred above. It is further alleged that Ram Partap was living in District Gonda (Uttar Pradesh) for running his business, hence he entrusted the management of house in dispute to Ram Kumar, who taking undue advantage got incorporated his name in M.C record.
In the year 1988, Ram Kumar entrusted the management of the house to Kamalpati son of Ram Partap and thus in the year 1991, the house in dispute was taken on record by Maman son of Hira Lal from Kamalpati. It is necessary to mention here that Maman is the husband of the plaintiff. It is alleged that Shiv Dayal son of Ram Kumar in order to grab the property in the name of Satya Narain son of Ram Kumar. Kamalpati sold the house to the plaintiff, then Shiv Dayal filed an ejectment petition against Maman Ram-husband of the plaintiff titled as Shiv Dayal v. Maman Ram for non-payment of rent etc and the same was allowed vide judgment and decree dated 2.4.1998.
RSA No.1866 of 2011 (O&M) #4# There is no dispute that husband of the plaintiff was inducted as a tenant in the house in dispute under Ram Kumar and ejectment petition was allowed by the learned Rent Controller vide judgment and decree dated 2.4.1998. It is also not in dispute that those proceedings have become final upto Hon'ble Supreme Court as the SLP filed by said Maman Ram has also been dismissed.
A perusal of Ex.DW4/Z18 to Ex.DW4/Z22 clearly reveals that Maman Ram-husband of the plaintiff used to admit Ram Kumar as the owner of the disputed property and there is nothing on record to prove the title of the vendor of the plaintiff at the time of execution of sale deed (Ex.PW2/A). There is no dispute that the matter has attained finality upto Hon'ble Supreme Court regarding the rent petition referred above and the plaintiff was also aware about the same as is clear from the observation of the learned trial Court in para 14 of its judgment, which reads as under:
"Maman Ram and Silochana did not leave any stone unturned and filed objections before Executive Court against the order of ejectment dated 2.4.98. The objections of Maman Ram and present plaintiff were dismissed upto last Appellate Court. The judgment and ejectment dated 2.4.98 is Ex.D6 appeal was filed by Maman Ram and same was also dismissed vide judgment dated 2.2.2001, copy of judgment is Ex.D7. Revision was filed before Hon'ble High Court against judgment dated 2.2.2001 and by the common judgment Hon'ble High Court disposed off the appeal as well as objections taken by present plaintiff. At page no.13 of RSA No.1866 of 2011 (O&M) #5# judgment passed by Hon'ble High Court in CR No.2884 of 2001 it was held, "there is no dispute about the principle laiddown in the said authority, but it has been held that Silochana has no right title or interest in the demised premise and she had made belated attempt to protect the possession of her husband. Copy of judgment passed by Hon'ble High Court is Ex.D9. SLP was filed before Hon'ble Apex Court and same was dismissed as is evident from Ex.D10."
Still further, the learned first appellate Court has recorded a finding that an issue was framed as to whether the property in dispute had been purchased from Kamalpati but the same was decided against Maman Ram as he did not lead any evidence to prove the same. Sale deed was produced as Mark-X and not proved as per law and knowingly well said Maman Ram did not make any effort to implead Silochana as a party nor she tried to be impleaded as a party on the basis of alleged sale deed. It has come on record that the possession of the house in dispute has already been delivered in execution proceedings to the decree holder. Still worse, Kamalpati-vendor appeared as PW3 and stated that for the last 40 years he had no connection in Mohindergarh and he further admitted that there was no proof of title in his favour regarding the house in dispute. Even Munna Lal (PW5) also admitted in his cross examination that defendant No.1 is the owner in possession of the house in dispute.
Keeping in view the facts and circumstances discussed hereinabove, it is apparently clear that the alleged sale deed dated RSA No.1866 of 2011 (O&M) #6# 7.1.1994 in favour of the plaintiff-appellant is of no consequences and the present litigation is absolute misuse of the process of this court, hence deserves no interference by this court while powers under Section 100 CPC as no substantial question of law is involved in the present appeal for adjudication.
Dismissed.
May 21,2012 ( JASWANT SINGH ) manoj JUDGE