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2000 DIGILAW 515 (PNJ)

Jagdeep Singh v. Chand Kaur etc.

2000-05-12

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - Jagdeep Singh-appellant has filed the present R.S.A. and it has been directed against the judgment and decree dated 23.9.1999 passed by Additional District Judge, Sangrur, who, while dismissing the appeal of defendants Chand Kaur and others, made the following observations :- "In these circumstances, I find that there is no dispute between the parties regarding ownership of respondent-plaintiff Jagdeep Singh, so far as Khasra No. 383//29/2/24 is concerned. The applicants-defendants have raised objection that in the garb of this Khasra number, respondent-plaintiff Jagdeep Singh is not entitled to get possession of their house, as shown in the site plan (Ex.D1). In such circumstances, the appeal of the appellants-plaintiffs is dismissed with the observation that the executing court shall deliver possession of the premises measuring 3 marlas comprising of Khasra No. 382//29/2/24, after getting it demarcated from the revenue officials, but not as per the site plan (Ex.P1). Decree sheet be prepared and the file be consigned to the record room." The plaintiff is not satisfied with these observations and his prayer is that by these observations the decree of the trial Court has been modified. In fact, the first appellate Court has dismissed the appeal and in these circumstances it was not obligatory on its part to make the aforesaid observations. 2. Some facts of the case can be noticed in the following manner :- Jagdeep Singh was the plaintiff in the trial Court and he filed a suit for mandatory injunction against the defendant by alleging that he was the owner of the suit property fully described in the head-note of the plaint and about 17/18 years back, he had constructed boundary wall and one shed for cattles. About 8/9 years ago, he also constructed one room of the dimensions of 14 x 12 by digging foundations. He further pleaded that about 10 years ago defendant Zile Singh came to Sunam and started residing near old grain market. About 8/9 years back, father of the plaintiff namely Rati Ram inducted the defendant as licensee in a separate house situated on the west of the disputed house and in this way the defendant started living in the house of the father of the plaintiff. About 7 years ago, when the plaintiff got married, the defendant was asked to vacate the said house. About 7 years ago, when the plaintiff got married, the defendant was asked to vacate the said house. The defendant prayed that he be given some time so that he can construct a new house and for this purpose the house belonging to the plaintiff may be given for this period. Under these circumstances, the defendant was put in possession of the house of the plaintiff as a licensee about 7 years prior to the institution of the suit. It is also the case of the plaintiff that 4/5 months back, the defendant had collected bricks and had threatened to construct a new room in place of cattle shed. Resultantly, the plaintiff filed a suit for permanent injunction in which injunction was granted in favour of the plaintiff, but the defendant had constructed the room in place of shed. Before filing the suit for permanent injunction, the licence of the defendant was cancelled and he was requested to hand over the vacant possession. Since the licence of the defendant was cancelled/revoked, in these circumstances, the plaintiff is entitled to get the vacant possession of the suit property as described in the head-note of the plaint and shown in the site plan attached with the plaint. The suit was contested by the defendant and his stand is that about 30 years back as per the instructions of the State Government, Gram Panchayat Moranwali had handed over the possession of the disputed site to him as owner and since then he had constructed boundary wall of 5 feet height, one room and one shed and is living there. His ration-card was also made in that very property and he is also a voter in the voter list. The plaintiff has no right, title or interest in the suit property. In the alternative, the defendant pleaded that he has become the owner of the site in dispute by way of adverse possession. With this defence, the defendant prayed for the dismissal of the suit. The plaintiff filed re-joinder to the written statement, in which he reiterated the averments made in the plaint by denying those of the written statement. 3. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is entitled for mandatory injunction ? OPP 2. Whether the plaintiff has no locus standi to file the present suit ? OPD 3. 3. From the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is entitled for mandatory injunction ? OPP 2. Whether the plaintiff has no locus standi to file the present suit ? OPD 3. Whether the present suit is not maintainable in the present form ? OPD 4. Whether the plaintiff is estopped by his own act and conduct from filing the present suit ? OPD 5. Whether the suit is liable to be stayed under Section 10 C.P.C. ? OPD 6. Whether the defendant has become owner of the suit property by adverse possession ? OPD 7. Relief. 4. The parties led oral as well as documentary evidence in support of their respective cases and vide judgment dated 24.2.1996, the Civil Judge (Junior Division), Sunam decreed the suit of the plaintiff against the defendants (who are legal representatives of defendant Zile Singh) by holding that the defendant Zile Singh was a licensee and directions were given to the legal representatives of Zile Singh to give the vacant possession of the suit property to the plaintiff. 5. Aggrieved by the judgment and decree of the trial Court, the legal representatives of Zile Singh filed appeal before the court of Additional District Judge, Sunam, which dismissed the appeal, but made the observations as given in the very first paragraph of this order. The plaintiff is aggrieved by the observations contained in the said judgment. Hence, this R.S.A. 6. I have heard Mr. Ashok Singla, Advocate, on behalf of the appellant and with his assistance have gone through the record of this case. 7. The learned Counsel for the appellant submitted that the learned Additional District Judge, Sangrur was not authorised under the law to make the observations as referred to above. These observations tantamount to the modification of the judgment and decree of the trial Court and in this manner the plaintiff is entitled to come to the High Court for nullifying the effect of the observations. The learned Counsel submitted that the learned Additional District Judge has dismissed the appeal and he had no option but to affirm the findings of the trial Court, which has granted a decree for injunction against the defendants calling upon them to vacate the site denoted in the head-note of the plaint and shown in the site plan Ex.P1. 8. The contention raised by Mr. 8. The contention raised by Mr. Singla is not acceptable to this Court, because the case which was set up by the plaintiff was with regard to Rect. No. 382, Khasra No. 29/2/24, the area of which was only 3 marlas. The case of the defendant was that apart from the disputed site he was in possession of other site over which he had constructed a house. In these circumstances, it was justified on the part of the learned first Appellate Court to clarify and define the rights of the parties, which is a predominant purpose of a civil Court so that during the course of execution the plaintiff may not take undue advantage of the situation. It was the specific stand of the defendant that he had raised a house and the plaintiff in the garb of the present suit also wants to get the possession of that house, which is independent from the disputed site. In these circumstances, the above-said observations were made by the learned Additional District Judge. I do not find any merit in this appeal and the same is hereby dismissed with no order as to costs. Appeal dismissed.