IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4901 of 2004 Date of Decision : July 08, 2009 Anand Swaroop ....Appellant Versus Narain Dutt and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. R.S. Mittal, Senior Advocate assisted by Mr. Atul Gaur, Advocate for the appellant. Mr. S.R. Hooda, Advocate for respondent No.1. T.P.S. MANN, J. Suit for permanent and mandatory injunction preferred by respondent No.1 was dismissed by the trial Court but decreed in the first appeal filed by him. Anand Swaroop, defendant No.1 is now before this Court by way of second appeal under Section 100 of the Code of Civil Procedure. The plaintiff had sought decree for permanent injunction restraining the defendants from preventing the plaintiff from using the bathroom and from making the common passage a pucca one from their own funds which was common properties of the parties, i.e. of house shown with letters ABCD in the site plan as described in para 1 of the Regular Second Appeal No.4901 of 2004 -2- plaint and further a decree for mandatory injunction directing the defendants to get restored the latrine in its original position which was common property and for common use of the parties as it was prior to 25.11.1996. According to the plaintiff, one residential house shown with letters ABCD in the site plan enclosed, consisting of nine rooms on the ground floor, one bathroom and one latrine and five rooms on the first floor and constructed over rooms No.4, 5, 6, 7 and 8 of the ground floor, open area towards West-South and a staircase on the North-East, situated at village Jakholi, Tehsil and District Sonipat was owned and possessed by Rama Nand son of Jag Ram and the boundaries of the house in question were given in para 1 of the plaint. It was further pleaded that Rama Nand, father of the parties, during his life time, executed a registered Will dated 21.6.1974, vide which he declared his five sons, namely, Bhagwan Dass, Chander Sain, Bhagwat Swaroop, Kishan Chand and Narain Dutt as owners in possession of the portions of the house in dispute detailed in para 1 of the plaint, already given to them by him with possession. Rama Nand died on 9.10.1981 and since then all his above mentioned five sons had become owners in possession of their respective portions of the house in dispute while latrine constructed on the Western-Southern corner and the bathroom a bit below towards southern wall and open passage along the southern wall leading to the above said bathroom and latrine had been and were still joint and common and actually used by all the five sons of Rama Nand. Regular Second Appeal No.4901 of 2004 -3- Chander Sain, one of the sons of Rama Nand, sold away his share/portion of the property to Anand Swaroop, i.e. defendant No.1 and Bhagwan Dass had given his property to his son, Anand Swaroop defendant No.1. It was also pleaded that defendant No.2 Bhagwat Swaroop and plaintiff Narain Dutt were practically in actual possession of the said house marked with letters ABCD and they were using the latrine, bathroom and the common passage for their common purposes jointly. It was also alleged that on 25.11.1996 both the defendants in collusion with each other demolished the latrine constructed on the western-southern corner of the house ABCD and they had further threatened to demolish the common bathroom and also to make the common passage along the southern wall of the said house, pucca one from their own funds and had started restraining the plaintiff to use the common passage and the bathroom while they had already demolished the latrine and to merge the land underneath the latrine, i.e. in their open portion situated on the northern side of the latrine and had put the plaintiff in a critical position as the plaintiff was not left with any other latrine and the common passage for his use. Thus, it was submitted that the plaintiff shall suffer irreparable loss and injury. So, the present suit was instituted. While filing their joint written statement, the defendants contested the present suit inter-alia on the grounds that site plan with the plaint was not complete as two rooms constructed by the plaintiff and Regular Second Appeal No.4901 of 2004 -4- Bhagwan Dass towards south of their respective rooms situated on the north-west were not shown. Similarly, the bathroom mentioned in para 1 of the plaint was constructed in the year 1978 by defendant No.1 adjoining the southern boundary wall of the said house, in front of the room of defendant No.1. In the south of the said house, house of Satya Parkash was situated. It was denied that late Rama Nand had partitioned the house, referred to in para 1 of the plaint, vide alleged Will dated 21.6.1974. In fact, the said house was partitioned by late Rama Nand vide Will dated 7.11.1997 amongst his sons except Kishan Chand, who was provided the house at Sonipat and his share in the house was given to defendant No.1. Both the Wills were the subject matter of a previous suit filed by Kishan Chand against the present defendants, regarding which a regular second appeal was pending in the High Court. It was admitted that Rama Nand had died on 9.10.1981 but it was denied that all the five sons of Rama Nand were given share in the said house as Kishan Chand was not given any share in the said house due to the reasons stated above. It was also denied that latrine and bathrooms referred to in this para were kept joint or continued to be joint. The latrine mentioned in this para of the plaint had fallen to the share of Bhagwat Swaroop, defendant No.2, which had been demolished by him with a view to constructing another suitable one. The bathroom referred to in the plaint was constructed by defendant No.1 in the year 1978 during the lifetime of Rama Nand in the open space in front of his room, Regular Second Appeal No.4901 of 2004 -5- with the consent of all concerned including the plaintiff as the plaintiff and Bhagwan Dass were permitted to construct two rooms, i.e. one each in the open place adjoining their respective rooms and defendant No.1 could not construct room adjoining his room as it would have obstructed the passage of the open space in the west fallen to the share of Chander Sain. As such, defendant No.1 was allowed to construct the bathroom which was exclusively owned and possessed by defendant No.1 since then. It was, however, admitted that Chander Sain had sold his share in the said property to defendant No.1. It was also admitted that Bhagwan Dass had also given his share in the said property to defendant No.1. It was admitted that Kishan Chand had been residing at Sonipat. Plaintiff and defendants were in actual physical possession of their respective share of the said house. It was denied that latrine and bathroom were joint and being used as such. It was asserted that bathroom was exclusively owned and possessed by defendant No.1 and was being utilized as such by him alone and none including the plaintiff and defendant No.2 had any concern with the same. It was not disputed that plaintiff was in possession of the rooms mentioned in this para of the plaint and rest of the house was owned and possessed by the defendants but it was totally incorrect and denied that the plaintiff was in possession of the rooms over rooms No. 2 and 9. Plaintiff had already filed a separate suit in respect of the room over room No.9 and staircase leading thereto and to the rooms constructed on the first floor which was Regular Second Appeal No.4901 of 2004 -6- pending in the Court of Dr. Neelima Shangla, the then Additional Civil Judge (Sr. Division), Sonipat and as such, latrine mentioned in the plaint existed on the portion, which fell to the share of Bhagwat Swaroop and the same was demolished by him to construct another one as mentioned above. It was denied that defendants ever threatened to demolish the bathroom. In fact, the said bathroom was exclusively owned and possessed by defendant No.1 and the same was being utilized by him as such and, thus, there was no plan to demolish the same, though defendant No.1 had right to demolish or construct the same. As far as common passage was concerned, none had ever obstructed the common use of the passage. In case it was converted into pucca structure, no injury was going to be caused to the plaintiff. It was also pleaded that the said latrine was not being used by anybody after the death of late Rama Nand as due to his old age only Rama Nand used to utilize the same and other members of the family used to go to ease themselves in the fields. Thus, the plaintiff had no cause of action to file the present suit. He had no concern with the latrine and bathroom. The suit of the plaintiff was liable to be dismissed as such. On the pleadings of the parties, the following issues were framed:- 1. Whether the bathroom and latrine were common properties of the parties in the house, ABCD, as shown in the site plan?OPP. Regular Second Appeal No.4901 of 2004 -7- 2. Whether the house marked by letter ABCD was partitioned before 21.6.1974? If so, how and its effect?OPP. 3. Whether the plaintiff is entitled to the permanent injunction with regard to the bathroom and common passage and mandatory injunction with regard to the latrine as alleged by the plaintiff?OPP. 4. Whether the bathroom was constructed by defendant No.1?OPD. 5. Whether the latrine was exclusively owned by defendant No.2.?OPD. 6. Whether the suit is not maintainable in the present form?OPD. 7. Relief. The trial Court decided issue No.1 against the plaintiff and in favour of the defendants while findings on issues No.2, 4 and 5 were dispensed with and issue No.6 decided in favour of the plaintiff and against the defendants and ultimately issue No.3 was decided against the plaintiff and in favour of the defendants. The first appellate Court reversed the finding on issue No.1 and decided the same in favour of the plaintiff and against the defendants. Issues No.2 to 5 were also decided in favour of the plaintiff. Regular Second Appeal No.4901 of 2004 -8- Finding on issue No.6 was maintained. The appeal was, accordingly, accepted and the judgment and decree of the trial Court was set aside. Consequently, the suit of the plaintiff regarding permanent injunction and mandatory injunction was decreed as prayed for with costs throughout. The only submission made by learned counsel for the appellant is that as the execution of two Wills dated 21.6.1974 and 7.11.1977 was the subject matter of RSA No. 2390 of 1989, the Courts below were required to stay the decision of the suit in hand as the aforementioned second appeal had arisen out of the same property and between the same parties. RSA No. 2390 of 1989 filed by Bhagwan Dass and others has been dismissed by this Court by an order of the even date. It has been held therein that Will dated 21.6.1974 had been validly executed by Rama Nand whereas the execution of subsequent Will dated 7.11.1977 by Rama Nand was surrounded by suspicious circumstances. In view of the above, no benefit can be extended to the appellant in the present appeal. Resultantly, the appeal is dismissed. ( T.P.S. MANN ) Regular Second Appeal No.4901 of 2004 -9- July 08, 2009 JUDGE ajay-1