R.S.A No. 3254 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A No. 3254 of 2010 (O&M) Date of decision:- 15.9.2010 Jagdish Singh & Ors. ... Appellants Versus Ishwar Kaur ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. S.K.Pipat, Sr. Advocate, with Mr. M.K.Pundir, Advocate, for the appellant. Gurdev Singh, J (oral) This is second appeal preferred by the defendants/appellants – Jagdish Singh, Surinder Kumar and Devinder Singh against the judgment and decree dated 20.5.2010 passed by District Judge, SAS Nagar, Mohali, vide which he dismissed the appeals preferred by the parties against the judgment and decree dated 19.11.2009 passed by Additional Civil Judge (Sr. Division), SAS Nagar, Mohali, vide which he decreed the suit of plaintiff/respondent – Ishwar Kaur for the recovery of possession of the property in dispute consisting of Kothi No. 456 situated in Phase – X, Mohali and for the recovery of Rs.3000/- per month as damages w.e.f 30.11.1996 till the delivery of possession while dismissing her suit for the other relief claimed in the plaint. The suit was filed by the plaintiff for the recovery of possession of the house in dispute and the damages for unauthorised possession thereof by the defendants @ Rs.5000/- per month and for the recovery of Rs.6 lakhs R.S.A No. 3254 of 2010 (O&M) -2- as damages for the mental agony, harassment and inconvenience suffered by her on account of the unauthorised possession of the defendants and for dragging her in various kinds of litigation. She pleaded in the plaint that her husband Bhagwan Singh was the owner in possession of the house, who expired on 25.2.1998. During his life time he executed a valid Will dated 23.6.1987 in her favour and it was only after his death that she completed the construction of this house. In her absence, the defendants tress passed into the house and occupied the same regarding which she lodged FIR No. 185 dated 18.12.1996 in Police Station Phase VIII, Mohali. This house can fetch a rent of Rs.5000/- per month. As the same is being unauthorisedly used by the defendants, so they are liable to pay damages for their unauthorised possession, at that rate. The suit was contested by the defendants. In their written statement they controverted the claim of the plaintiff and came out with the plea that Bhagwan Singh left behind Kuldeep Singh as one of the co-sharer and a division took place amongst all the legal heirs and the house in dispute fell to the share of that Kuldeep Singh and it was he who constructed the house. Jagdish Singh – defendant No.1 is the power of attorney of that Kuldeep Singh. The Will put forward by the plaintiff is forged and it has already been decided, in the previous litigation, that no such Will was ever executed by Bhagwan Singh, in favour of the plaintiff. On the pleadings of the parties following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled for possession of Kothi No. 456, Phase X, SAS Nagar Mohali. R.S.A No. 3254 of 2010 (O&M) -3- 2. Whether the plaintiff is entitled for recovery of Rs.1,00,000/- as damages for unauthorised use and occupation of the house by the defendants @ Rs. 5000/- per month and for recovery of Rs.6 lacs for having caused mental torture, agony, harassment and inconvenience to the plantiff by the defendants by unauthorizedly occupying the house No.456, Phase X, SAS Nagar (Mohali), and for dragging her in various kind of litigation and for directing the defendants to pay Rs.56,000/- per month as damages from the date of filing the suit till the delivery of the house? OPP 3. Whether the suit is pre mature and is not maintainable in the present form? OPD 4. Whether the suit is barred by the principle of resjudicata?OPD 5. Whether the suit is barred under order 7 rule 1 CPC?OPD 6. Whether the suit is bad for non joinder of the necessary parties? OPD 7. Whether the suit is not properly valued for the purposes of court fee? OPD. 8. Relief. Both the sides produced their evidence on these issues. After going through that evidence and hearing learned counsel for both the sides the learned trial Court decided issues No.1 and 3 to 7 in favour of the plaintiff and issue No.2 was decided to the effect that the plaintiff was entitled to only the damages to the tune of Rs.3000/- per month for the unauthorised occupation of the house by the defendants. As a resultant R.S.A No. 3254 of 2010 (O&M) -4- effect of decision on those issues the suit of the plaintiff was partly decreed vide aforesaid judgment. The defendant preferred an appeal against that judgment and decree, but the same was dismissed by Additional District Judge, vide aforesaid judgment. I have heard learned counsel for the appellants. It has been submitted by learned counsel for the defendants/appellants that Kuldeep Singh was one of the co-sharer in the house in dispute being one of the legal heir of Bhagwan Singh deceased and was coming in possession of the house in dispute as such. The plaintiff/respondent as a co-sharer was not entitled to the relief of possession against the other co-sharer. This question arises in the present appeal, which is a substantial question of law. The suit was never filed by the plaintiff against Kuldeep Singh. No doubt Jagdish Singh-defendant No.1 is said to be the general attorney of that Kuldeep Singh and that power of attorney was upheld by the trial Court and the appellate Court, but the fact remains that the suit was not filed against Jagdish Singh as attorney of Kuldeep Singh nor defendants ever came up with the plea that defendant No.1 was coming in possession of the house in dispute as attorney of Kuldeep Singh. When such is the case, it cannot be said that the above said question arises for determination. There is no substantial question of law involved in the present appeal. The appeal is dismissed accordingly. September 15, 2010 (Gurdev Singh) tripti Judge