Malkiat Singh v. Ram Garhia Kanya Pathshala

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Balram Singh, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 11469-C of 2009 : For the reasons mentioned in the application, which is accompanied by affidavit, delay of 344 days in re-filing the appeal is condoned. Main Appeal : This is second appeal by defendant – Malkiat Singh, who has been unsuccessful in both the courts below. Respondent – Ram Garhia Kanya Pathshala filed suit for possession of the suit property being part and parcel of khasra no.1875, as described in the plaint and for recovery of Rs.10,800/- as mesne profits @ Rs.300/- per month for three years preceding the filing of the suit and also for permanent injunction restraining the defendant from raising any R. S. A. No. 3761 of 2009 2 construction in the suit property. The plaintiff alleged that Mahant Sant Ram, vide gift deed dated 14.06.1979, gifted 11 kanals 19 marlas land including land underneath the suit property in favour of the plaintiff. Consequently, plaintiff became owner of the suit land. Mahant Sant Ram had allowed the defendant to use the suit property in the year 1975. After the plaintiff became owner of the suit property and other property in the year 1979, oral license in favour of the defendant, who occupied the suit property as licensee, came to an end. The plaintiff, therefore, sought possession of the suit property. The defendant started raising construction over the suit property and therefore, permanent injunction has also been sought. The plaintiff also claimed mesne profits for use and occupation of the suit property. The defendant inter alia pleaded that dispute regarding ownership of the suit property is going on. Municipal Corporation has filed cases against the persons, who are in occupation of the land. Municipal Corporation claims to be owner of the suit land alleging it to be shamlat deh. Suit is bad for non joinder of Municipal Corporation. It was also pleaded that Mahant Sant Ram had executed an agreement dated 09.06.1971 to sell the suit property to one Tarlok Singh, who thereafter executed agreement to sell dated 07.12.1973 in favour of the defendant regarding the suit property and therefore, defendant is owner in possession of the suit property in view of aforesaid agreement and plaintiff is not owner of the suit property. Mahant Sant Ram also had no right to gift the suit property. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jalandhar, vide judgment and decree dated 12.12.2005, decreed the suit of the plaintiff. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated

31.03.2008. Feeling aggrieved, the defendant has preferred the instant second appeal. R. S. A. No. 3761 of 2009 3 I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the plaintiff in the plaint has not even averred that plaintiff is owner of the suit property. However, learned counsel for the appellant, on being confronted with the plaint in his own possession, could not substantiate this contention because it is specifically pleaded in the plaint that plaintiff is owner of the suit property. Learned counsel for the appellant vehemently contended that suit property vests in Municipal Corporation and therefore, Municipal Corporation was necessary party to the suit. The contention cannot be accepted because vide judgment Annexure A-1, suit filed by plaintiff herein against Municipal Corporation and another has been decreed declaring the plaintiff to be owner of the suit land and other land. Learned counsel for the appellant contended that the defendant was not made party to the said suit. However, defendant-appellant herein was not necessary party to the suit in view of title dispute between plaintiff and Municipal Corporation. There is another aspect of the matter. The defendant himself claims to derive title of the suit land from Mahant Sant Ram. However, Mahant Sant Ram gifted the suit land to the plaintiff. It does not lie in the mouth of the defendant-appellant to contend that Mahant Sant Ram had no right to gift the suit land, when the defendant-appellant himself claims to have derived title of the suit land from Mahant Sant Ram. However, the defendant's plea that he has become owner of the suit land, cannot be accepted because he only alleged agreement to sell dated 09.06.1972 executed by Mahant Sant Ram in favour of Tarlok Singh and agreement dated 07.12.1973 executed by Tarlok Singh in favour of the defendant. However, no suit was ever filed for specific performance of either of the said agreements. Merely on the basis of agreement, the defendant could not have derived title to the suit property in the absence of any registered sale R. S. A. No. 3761 of 2009 4 deed. Learned counsel for the appellant also contended that Mahant Sant Ram himself was saunjidhar and therefore, he could not have gifted the suit land to the plaintiff. However, for the reasons recorded in the preceding paragraph, this contention also cannot be accepted. Moreover, the defendant has no right to retain possession, when the suit land has been gifted by Mahant Sant Ram to the plaintiff, because the defendant claims possession from Mahant Sant Ram and not from anybody else. There is concurrent finding by both the courts below against the appellant. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is without any merit and is accordingly dismissed in limine. March 02, 2010 monika ( L. N. MITTAL ) JUDGE