Nath Alias Natha Singh v. Labh Singh

Coram: Hon'ble Mr. Justice Alok Singh Present: Mr. Surjeet Singh, Sr. Advocate with Ms. Shikha Sharma, Advocate for the appellant. None for the respondent. ..... Alok Singh, J. (Oral)

1. This second appeal has been filed challenging the judgment and decree dated 17.8.1987 passed by First Appellate Court/Additional District Judge, Patiala decreeing the suit of the plaintiff for prohibitory injunction restraining the defendant-respondent from interfering in the possession over the portion of the house in dispute and further issuing mandatory injunction directing the defendants to remove the lock over the shop forming part of the disputed portion.

2. The brief facts of the case are that plaintiffs have filed this suit against defendants for permanent injunction restraining them not to interfere in any portion of the house, alleging that Nath-defendant is not the real son of Chhotta Singh and Nath-defendant has adopted wrongfully the name Chhotta Singh as his father; Chhotta Singh had RSA No.2775 of 1987 2 purchased a plot through registered sale deed dated 9.12.1964 and constructed a house upon it along with shops, Rahdari and Chobaras and Amar Singh-plaintiff was living jointly with Chhotta Singh from the very beginning and was serving him to the best of his ability; he was also joint with Chhotta Singh in earning and Mess; the plot was purchased with the joint funds of Amar Singh plaintiff and Chhotta Singh; in a family arrangement Chhotta Singh father of Amar Singh gave and transferred two rooms, one kitchen one courtyard, one shop, a Rahdari and two Chobaras built upon the shop to Amar Singh plaintiff and made him the owner in possession of the above properties and Chotta Singh relinquished all his rights in the above properties in favour of Amar Singh-plaintiff about 10 years back; the parties being Hindus the oral family arrangement is permissible under law between them; Amar Singh is in actual possession as owner for the last ten years; the other plaintiffs who are the son and wife of Amar Singh plaintiff are also living with him in the above portion of the house; that Nath Singh-defendant along with his son Bhola is residing in Hira Mahal Colony, Nabha; Nath and Amar Singh had purchased a plot in Hira Mahal Colony, Nahba and had constructed it jointly but some years ago on the understanding between them and Chhotta Singh, the plot situated in Hira Mahal Colony along with the construction jointly made by them was handed over to Nath and his son Bhola and they are now residing in that property; Nath Singh defendant forcibly took away Chhotta Singh with him to his house although Chhotta Singh was not in his senses and he has no sound disposing mind for the last two months; the alleged registered Will and decree claimed by the defendants are null and void and have no adverse effect upon the rights of the plaintiffs. The plaintiffs have no remedy except to file this suit for permanent injunction. RSA No.2775 of 1987 3

3. Defendants contested the suit of the plaintiffs and filed written statement, wherein it was contended that Amar Singh, Nath and Hari Singh were sons of Chhotta Singh and further stated that the plaintiffs have taken contradictory please regarding their relations with Chhotta Singh and it was denied that Nath is not the son of Chhotta Singh. Purchase of plot by Chhotta Singh on 18.12.1964 is also admitted; Amar Singh plaintiff is a man of unsound mind and is not able to do any kind of work; Chhotta Singh has never been served by Amar Singh; rather Chhotta Singh used to give him financial aid because Amar Singh was un-employed and Chhotta Singh was running a shop of cemented jalies; at the time of illness of Chhotta Singh he was looked after by defendants No.1 to 3 because they were in position to look after him and pleased by their serves Chhotta Singh executed a valid Will in their favour on 2.1.1985; Construction was made by Chhotta Singh of his own income on his self acquired property; family settlement was admitted and in that settlement 208 Sq.ft. Yards was given to Jaswinder Singh through a Civil Court decree and on 4.2.1985 Chhotta Singh again gave two Chobras and one Varandah measuring 40/1/3 Sq. yards to defendant No.3 through the decree and Bhola Singh defendant was given a shop measuring 29/1/3 sq. yards and Amar Singh-plaintiff was given 66 sq. yards consisting two rooms, courtyard etc. measuring 66 sq. Yards; it was denied that Chhotta Singh ever lived with Amar Singh, Darshan Kaur and their son but he resided separately. It was denied that Nath Singh relinquished all his right in house situated at Patiala Gate rather Nath Singh being the elder son of Chhotta Sngh is legally entitled to inherit the property left by Chhotta Singh and further stated that Hari Singh defendant is residing in the chobaras. It was denied that Chhotta Singh executed any Will in favour of Amar Singh on 18.12.1984 in fact the last Will is RSA No.2775 of 1987 4 dated 2.1.1985. It was denied that Chhotta Singh was forcibly taken away rather in fact he at his own free Will resided with him and he was having normal health and was having sound disposing mind. Decrees of Civil Court cannot be termed as simple and waste papers. Various other allegations in the plaint have also been controverted. Some additional please have also been taken that the plaintiff has not locus standi; that the suit is not maintainable; that he plaintiff has not cause of action; that he plaintiff is concealing the true; facts; that the suit is bad for misjoinder and nonjoinder of necessary parties because Jaswinder Singh minor is a necessary party; that the defendants are entitled to special costs and prayed that the suit be dismissed with costs.

4. In the replication the plaintiffs have reiterated their stand in the plaint and controverted the stand of defendants taken in the written statement which is not in consonance with the plaint and prayed that the suit of the plaintiff be decreed.

5. Learned trial Court framed following issues:-

1. Whether the plaintiffs are plaintiffs are owners in possession of the property in suit ?OPP.

2. Whether the plaintiff has no locus standi to file the suit?OPD

3. Whether the suit is not maintainable?OPD

4. Whether the plaintiffs have no cause of action?OPD.

5. Whether the suit is bad for misjoinder and nonjoinder of necessary parties?OPD.

6. Whether the defendants are entitled to special costs?OPP.

7. Whether the plaintiffs are entitled to injunction prayed for?OPP.

8. Relief. RSA No.2775 of 1987 5

6. Learned trial Court did not agree with the plaintiffs. Suit of the plaintiffs was dismissed by learned trial Court. Feeling aggrieved from the judgment passed by learned trial Court, plaintiff assailed the same before First Appellate Court. First Appellate Court has found long possession of the plaintiff over the disputed property. First Appellate Court allowed the appeal and issued the permanent injunction on the basis of long possession of the plaintiffs. However, First Appellate Court did not decide the question of title between the parties. Judgment of First Appellate Court is impugned in the present appeal.

7. I have heard learned counsel for the parties and perused the record.

8. Learned First Appellate Court did not examine question of validity of alleged Wills or title of the portion. While passing the impugned judgment First Appellate Court in Para 16 of the judgment has observed as under:- “The findings of the trial Court to the contrary under the said issues are, therefore, reversed, clarifying that the question of ownership does not call for decision in this case and it will be open to the aggrieved party to assert the same separately in accordance with law.”

9. Mr. Surjeet Singh, learned Sr. Advocate, appearing for the appellants stated at bar that in view of observations made by the learned First Appellate Court parties may seek appropriate legal remedy to get their title decided in appropriate forum. Otherwise, also in a suit seeking injunction, First Appellate Court seems to be justified in issuing injunction on the basis of long possession. No substantial question of law is suggested by learned counsel for the appellants.

10. In view of peculiar facts and circumstances of the present RSA No.2775 of 1987 6 case, particularly in view of statement made by learned Sr. Advocate for the appellants, no interference is called for. Appeal is thus dismissed.

10.3.2010 sharmila (ALOK SINGH) JUDGE