Ashok Kumar Choudhary alias Satpal & Ors. v. Ashok Kumar Bhambri & Ors.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Deepak Arora, Advocate for the appellants. L. N. MITTAL, J (ORAL) This is second appeal by legal representatives of the original plaintiff-Manohar Lal since deceased. The plaintiff alleged that rehabilitation department allotted the suit property No.EF 347/3, New Railway Road, Jalandhar on rent to Manohar Lal-plaintiff, Harbans Lal and Sikander Lal. It was alleged that Harbans Lal and Sikander Lal have since died. Defendants No.10 to 14 are legal heirs of Harbans Lal whereas defendant Nos.1 to 5 and 15 to 17 are legal heirs of Sikander lal. All the said three allottees were in possession of the suit property, enjoying their portions. The plaintiff was running a photography business in one shop in the suit property. However, for 2-3 years before filing of the suit, the plaintiff could not run the said business on account of ill health and in his absence, the defendants encroached upon the portion of the plaintiff two months before the filing of the suit and raised construction without consent of plaintiff and without RSA No.455 of 2010 -2- obtaining sanction from Municipal Corporation, Jalandhar (defendant No.20). No partition of the suit property has taken place between plaintiff and Sikander Lal and Harbans Lal or their heirs. The disputed property was being used jointly as they were related to each other. However, now dispute has arisen because defendants have raised construction without sparing the share of the plaintiff. The defendants are in illegal possession of more than 2/3rd share. The plaintiff, accordingly, sought partition of the suit property and separate possession of his 1/3rd share. The plaintiff also sought permanent injunction, restraining the defendants from alienating any portion of the suit property. The plaintiff also sought mandatory injunction directing Municipal Corporation to remove unauthorized construction and encroachment made by the defendants in the suit property as depicted with red colour in the site plan. Defendant Nos.1, 2, 10, 11 and 14 to 17 filed written statement admitting that the suit property was allotted to plaintiff and Harbans Lal and Sikander Lal. However, it was denied that allotment was in equal share. It was pleaded that defendants have not encroached upon any portion of the plaintiff. It was denied that parties are co-sharers in the suit property. On the other hand, it was pleaded that parties are joint tenants in the suit property. Defendant Nos.3 to 5 in the written statement also pleaded similar version. Defendant Nos.18, 19 and 21 (Punjab State Electricity Board and its officials) pleaded that there is no cause of action against them. Electricity connection was in the name of Sikander Lal and excess load was found. Representative of Sikander Lal approached for RSA No.455 of 2010 -3- regularization thereof, but the plaintiff raised dispute about the same and the matter was still pending. Defendant No.20-Municipal Corporation also pleaded that there is no cause of action against it. However, it was pleaded that notice dated 04.08.1998 under Section 269 of the Punjab Municipal Corporation Act had already been issued for taking action regarding unauthorized construction. Learned Civil Judge (Junior Division), Jalandhar vide judgment and decree dated 31.10.2005 partly decreed the suit holding the plaintiff to be entitled to possession to the extent of 1/3rd share in the suit property and directing the defendants to handover vacant possession of the portion to the extent of 1/3rd share falling to the share of plaintiff. Suit against defendant Nos.18 to 21 stands dismissed with liberty to defendant No.20 to proceed in accordance with law for demolition of unauthorized construction and encroachment if any. First appeal preferred by defendant No.1 has been allowed by learned Additional District Judge, Jalandhar vide judgment and decree dated 04.03.2009 and thereby suit filed by the plaintiff stands dismissed. Feeling aggrieved, legal representatives of the plaintiff have preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. On the face of it, the suit filed by the plaintiff was not maintainable and no relief could be granted to the plaintiff even taking the averments made in the plaint to be at their face value. Even according to plaintiff's own version, there was joint tenancy of the suit property in favour of the plaintiff and Sikander Lal and RSA No.455 of 2010 -4- Harbans Lal and the property was being used jointly by them. They being not owners of the suit property, the plaintiff had no right to seek partition of the suit property. The plaintiff as one of the three tenants also could not seek partition of the tenancy rights in the suit property as there was admittedly single joint tenancy in favour of plaintiff and Sikander Lal and Harbans Lal. Moreover, the plaintiff did not even implead the landlord i.e. rehabilitation department as party to the suit and behind the back of the landlord, partition of the tenancy premises could not be granted at the instance of one of the tenants nor the joint tenancy could be split. Plaintiff also sought permanent injunction restraining the defendants from alienating any portion of the suit property. However, even defendant Nos.1 to 17 being successors of tenants have no right to alienate the suit property. The contesting defendants in their written statement have also pleaded that they have no right to alienate the suit property. Consequently, the question of granting any such injunction as sought by the plaintiff did not arise. The plaintiff also sought relief of mandatory injunction directing defendant No.20-Municipal Corporation to remove unauthorized construction and encroachment made by the other defendants in the suit property. However, no such direction could be issued at the instance of the plaintiff to the Municipal Corporation. On the other hand, Municipal Corporation had already issued notice under Section 269 of the Punjab Municipal Corporation Act for removal of illegal construction. Obviously, nothing in the instant litigation would debar the Municipal Corporation from proceeding in RSA No.455 of 2010 -5- the matter in accordance with law. The suit filed by the plaintiff was completely misconceived and untenable. No relief of partition, permanent injunction and mandatory injunction as sought by the plaintiff could be granted to the plaintiff even on the basis of the averments made in the plaint. The instant second appeal is, thus, devoid of any merit and is accordingly dismissed in limine.

04.08.2010. A. Kaundal ( L. N. MITTAL ) JUDGE