RSA No. 3136 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 3136 of 2011 (O&M) Date of decision : 19.8.2011 ... Surinder Kumar Kakkar and another ................Appellants vs. Ravinder Kumar Kakkar and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Kul Bhushan Sharma, Advocate for the appellants. ... K.C. Puri, J. CM No. 8627 C of 2011 stands allowed. Filing of certified copy of judgment and decree dated 30.7.2009 passed by the trial Court, stands dispensed with. Plaintiff - appellants have challenged the judgment and decree dated 25.3.2011 passed by Sh. Darshan Singh, District Judge, Faridabad, vide which the appeal preferred by them against the judgment and decree dated 30.7.2009 passed by Sh. Jarnail Singh, Civil Judge (Junior Division), Faridabad, was dismissed. Surinder Kumar Kakkar and Mohinder Kumar Kakkar filed RSA No. 3136 of 2011 -2- suit against their brother Ravinder Kumar Kakkar and his wife Indra Kakkar, for declaration, mandatory injunction and permanent injunction in respect of the suit property with the allegation that plaintiffs and defendants No.1 are joint owners and in possession of 1/3rd share each of commercial premises as described in the heading of the plaint. It is pleaded that they alongwith one Vijay Parkash Garg and defendant No.2 started the business of liquor under the name and style of Haryana Agencies in terms of the partnership deed dated 1.1.1973 and thereafter, plaintiffs and defendant No.1 formed a company under the name and style of Haryana Agencies Private Limited and all the three became directors of the Board of the said company. The suit property has been constructed by the plaintiffs and defendant No.1 and all of them have started liquor business and coal depot jointly under the name and style of Haryana Agencies Private Limited. It is further alleged that Chander Dutt, Harcharan, Brij Nandan and Ram Narain filed a civil suit No. 268 on 22.8.1986 for possession and mandatory injunction against defendant No.1 without making the plaintiffs party. The said suit was dismissed vide judgment dated 28.4.1989 passed by Sub Judge IInd Class, Faridabad. Defendant No.1 had taken the plea of adverse possession, which was accepted by the Court. The appeal against the said judgment was preferred, which was also dismissed by the Additional District Judge, Faridabad vide judgment and decree dated 24.9.1991. Prior to 1.4.1970 plaintiffs and defendant No.1 used to run the business of fule and wood depot since 1962 and licence was obtained from the Municipal Committee in the name of defendant No.1 being RSA No. 3136 of 2011 -3- the eldest brother. The plaintiffs have further pleaded that defendant No.1 in connivance with revenue officials got sanctioned mutation No. 5386 in his favour as sole owner without the consent of the plaintiffs. A prospective purchaser visited the suit property on 15.7.2000 and told the plaintiffs that defendant No.1 was negotiating with him to sell part of the said property. Defendant No.1 has been collecting rent from the tenants sitting in different portions of the suit property, on his behalf and on behalf of the plaintiffs. So, it is prayed that plaintiffs and defendant No.1 be declared as owners to the extent of 1/3rd share each. On put to notice, defendants filed the written statement taking certain preliminary objections regarding maintainability, locus standi and cause of action. On merits, it is denied that parties to the suit are joint owners and in possession of any part of the suit property. It is pleaded that there was partnership firm known as Haryana Agencies and the said partnership firm was carrying on business at premises 2A/4B, Industrial Plot, NIT, Faridabad. The said firm was dissolved and the present company was constituted. The plaintiffs have no concern with the suit property. The defendants have constructed whole of the property. It is denied that it was constructed by joint funds. It is pleaded that suit for possession filed by Chander Dutt etc. was dismissed and defendant No.1 has been held as owner of the suit property. The appeal was also dismissed. Mutation No. 5386 has been sanctioned in favour of defendant No.1 alone. Plaintiffs have no concern with any property. Plaintiffs filed replication denying the contents of the written RSA No. 3136 of 2011 -4- statement and reiterating the stand taken in the plaint. From the pleadings of parties, following issues were framed:- 1. Whether the plaintiffs and defendant No.1 are joint owners and in possession to the extent of 1/3rd share each of the suit property? OPP 2. The plaintiffs have no locus standi to file the present suit? OPD 3. Whether the suit has been filed with malafide intention and to harass the defendants? OPD 4. Whether the plaintiffs have no cause of action against the defendants? OPD 5. Relief. Learned trial Court after appraisal of the evidence on the file, dismissed the suit of the plaintiffs with no order as to costs, vide judgment dated 30.7.2009. Feeling dissatisfied with the above said judgment dated 30.7.2009, the plaintiffs filed the Ist Appeal, which was heard by Sh.Darshan Singh, District Judge, Faridabad. Learned District Judge, after reappraisal of the evidence, dismissed the appeal preferred by the plaintiffs with no order as to costs, vide judgment dated 25.3.2011. Still feeling dissatisfied with the judgment and decree dated 25.3.2011 and judgment and decree dated 30.7.2009, referred to above, the plaintiff-appellants have preferred the present regular second appeal. The appellants in paragraph No. 14 of the grounds of appeal RSA No. 3136 of 2011 -5- have mentioned that following substantial questions of law have arisen in the present appeal for consideration:- (i)Whether the impugned judgment and decree passed by both the Courts below are manifest illegal, perverse and result of mis-reading of evidence and documents? (ii)Whether the appellant's right to the possessory title qua the suit property, having inherited from the grandfather, can be deprived by the respondent No.1? (iii)Whether the respondent No.1 can claim the sole title and possession over the property inherited from the grandfather and father to the exclusion of the appellants/brothers? (iv)Whether the judgment and decree Ex.P-15 and P-17 can bind the appellant's right and possessory title over the suit property as the appellants were not party therein? (v)Whether the joint family business over the suit property does not infer the joint possession and ownership of the appellants and respondent No.1? (vi)Whether the position of respondent No.1 co-owner co- possessor does not deem to be the possession for and on behalf of the appellants co-owners? (vii)Whether one person of joint possession can claim the absolute ownership in view of the judgment and decree Ex. P- 15 and P-17 to the exclusion of appellants on the strength of adverse possession? Learned counsel for the appellants has submitted that both the Courts below have mis-read and mis-interpreted the evidence on the RSA No. 3136 of 2011 -6- file. The defendant No.1 in the earlier litigation has admitted that grand father was in possession of the property. The defendant No.1 was never in exclusive possession of the property. The previous judgment, no doubt, declared the defendant No.1 as owner in possession, but that judgment would be for the benefit of the plaintiffs. It is the joint property. Defendant No.1 had only 1/3rd share. He cannot claim the ownership in respect of whole of the property. Parties have been carrying on the business in the suit property jointly. Defendant No.1 has turned dishonest and has wrongly got the mutation in his name. Learned counsel for the appellants has relied upon the authority reported as Ram Mehar vs. Jage Ram and others 1983 PLJ 247. So, prayer has been made for declaring the plaintiffs owner in possession of the 2/3rd share of the suit property. The crucial point for determination is whether the plaintiffs and defendants are in joint possession and are joint owners of the suit property and that said property was ever possessed by father and grand father of the parties. Both the Courts below after appreciating the evidence on the file reached to the conclusion that father and grand father were not the owners nor have any concern with the suit property and has further held that defendant No.1 has become the owner of the suit property by way of adverse possession. That being a finding of fact cannot be interfered in the regular second appeal. The defendant No.1 has been held exclusive owner in possession of the property in the previous judgment Exhibit P-15 andP-17. One of the plaintiffs has RSA No. 3136 of 2011 -7- admitted that he got the summons and he handed over the summons to defendant No.1. So, in case the plaintiffs have got any right in that case they would have requested the Court to array them as respondents. The defendant No.1 has been able to prove that he exclusively raised the construction. It has also come on the record that defendant No.1 alone has been collecting the rent in respect of the parts of the premises which are let out by him exclusively. It is not proved that suit property is ancestral property. Defendant No.1 has been held owner in possession of the suit property by way of adverse possession. Both the Courts below have rightly held that previous judgment, although not binding on the plaintiffs, but are relevant to prove the exclusive possession of the defendant No.1. Plaintiffs have failed to prove that they have asserted any right in the suit property at any occasion. The liquor business was stated to be carried on in other premises according to defendant No.1. So far as authority in Ram Mehar’s case (Supra), is concerned, that relates to the joint possession of co-sharer. There is nothing on the file that appellants are co-sharers in the suit property. So, the cumulative effect of the above discussion is that substantial questions of law raised by the appellants do not exist at all. There is nothing on the file to show that finding regarding exclusive ownership and possession of defendant No.1 in respect of the suit property is based upon conjectures and surmises or a result of mis-reading or mis-interpreting the evidence on the file. It cannot be said by any stretch of imagination that judgments of both the Courts below are perverse. RSA No. 3136 of 2011 -8- Consequently, the appeal is without any merit and the same stands dismissed. A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 19.8.2011 Judge chugh