Ashok Kumar v. Kishore Kumar Chadha

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Rahul Sharma, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Ashok Kumar plaintiff has filed the instant second appeal having been unsuccessful in both the courts below. Plaintiff filed suit alleging that in family settlement arrived at on 10.10.1983 and reduced into writing on 14.10.1983 between plaintiff, his father Janak Raj and two brothers Ravi Kumar and Shakti Kumar, the plaintiff became owner in possession of the disputed two shops. Previously, plaintiff's brother Ravi Kumar was owner of four shops including two disputed shops, but pursuant to family settlement, plaintiff became owner in possession of the two shops in dispute. The defendant has no right, title or interest therein. The plaintiff accordingly sought declaration that he is owner in possession of the two shops. The plaintiff also claimed permanent injunction restraining the defendant from alienating the shops to anybody. The defendant inter alia pleaded that he was not aware of the R. S. A. No. 410 of 2010 2 alleged family dispute between plaintiff and his father and brothers, but Ravi Kumar, who was owner of the suit property, sold the same along with some other property to defendant vide two sale deeds dated 21.11.1986 and

23.02.1993 and pursuant thereto, the defendant is owner in possession of the suit property. Learned Civil Judge (Junior Division), Gurdaspur, vide judgment and decree dated 10.05.2008, dismissed the suit of the plaintiff. First appeal preferred by the plaintiff has also been dismissed by learned Additional District Judge, Gurdaspur, vide judgment and decree dated

13.10.2009. Feeling aggrieved, the instant second appeal has been instituted by the plaintiff. I have heard learned counsel for the appellant and perused the case file. Admittedly, the plaintiff-appellant is not in possession of the suit property and was not in possession thereof at the time of filing of the suit. Consequently, in view of proviso to Section 34 of the Specific Relief Act, 1963, the instant suit for declaration and permanent injunction alone is not maintainable. Proviso to Section 34 of the Specific Relief Act provides that no Court shall grant declaration, where the plaintiff being able to seek further relief than a mere declaration of title, omits to do so. In the instant case, the plaintiff being out of possession, was able to seek further relief of possession of the suit property, but omitted to do so. Consequently, the suit itself is not maintainable. In addition to the aforesaid, the plaintiff claimed to be owner in possession of the suit property, but admittedly, he was out of possession.

Thus, the plaintiff made a false plea in the suit that he was in possession of the suit property. The suit property had been let out by Ravi Kumar, the then owner, to Union Bank of India. Admittedly, the plaintiff, even after the alleged family settlement, never received any rent from the said tenant. On R. S. A. No. 410 of 2010 3 the other hand, there is evidence on record that the defendant received rent of the suit property from the said tenant from the year 1993 (the date of second sale deed in favour of the defendant) till the year 1999, when the tenant vacated the said property. It would again depict that the plaintiff had no right or interest in the suit property because if the plaintiff had become owner of the suit property by way of family settlement in the year 1983, the plaintiff would have claimed rent from the tenant since the date of family settlement. However, the plaintiff never claimed any rent from the tenant throughout for more than 15 years, the Bank remained tenant in the suit property after the alleged family settlement.

Even when the tenant vacated the suit property, the tenant handed over its vacant possession to defendant and not to the plaintiff. The Bank vacated the suit property on 04.02.1999. However, the plaintiff filed the instant suit on 15.06.2004 i.e. more than five years after the tenant vacated the suit property. In fact, the plaintiff filed suit in the year 2004 i.e. more than 20 years after the alleged family settlement and during the said intervening period of more than two decades, the alleged family settlement never saw the light of the day. Ravi Kumar was owner of the suit property and he sold it to the defendant vide two sale deeds dated 21.11.1986 and 23.02.1993, but the plaintiff, till filing of the instant suit on 15.06.2004, never challenged the said sale deeds. In fact, in the instant suit also, the plaintiff did not challenge the said sale deeds. From the aforesaid, it is apparent that the plaintiff has no case at all.

There is no illegality or perversity in the concurrent finding recorded by the courts below against the plaintiff-appellant. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed in limine. February 02, 2010 monika ( L. N. MITTAL ) JUDGE