RSA No.4136 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4136 of 2010 (O&M) Date of decision : 03.12.2010 Hans Raj & Another .... Appellants Versus Hira Lal .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL. Present : Mr. Ranjit Saini, Advocate for the appellants. **** L.N.MITTAL, J. (ORAL) CM No.12471-C of 2010 Allowed as prayed for. RSA No.4136 of 2010 Defendants Hans Raj and his son Om Parkash are in second appeal having failed in both the courts below. Respondent-plaintiff Hira Lal filed suit for mandatory injunction directing the defendants to deliver vacant possession of ground floor of the disputed house alleging that plaintiff's father Pritam Ram was owner in possession of the suit property. He died on 21.10.1986 leaving behind widow Bishan Devi, five sons (including plaintiff and defendant No.1) and two daughters as his 8 legal heirs. In the year 1990, all the brothers and sisters effected family settlement qua the suit property. In the family settlement, the suit property came to the plaintiff exclusively who compensated his brothers and sisters in terms of money. Defendant No.1 was also party to the said family settlement. On its basis, decree dated RSA No.4136 of 2010 (O&M) -2- 23.01.1992 was also passed in favour of plaintiff against all his brothers and sisters including defendant No.1, declaring the plaintiff to be exclusive owner in possession of the suit property. All brothers and sisters made statement in the said case to this effect. Joint affidavit dated 05.01.1991 was also executed by all the brothers and sisters in favour of the plaintiff affirming that they have no objection if the suit property is mutated in the name of plaintiff as exclusive owner and accordingly, it was so mutated in the Municipal record vide letter dated 07.01.1991. The plaintiff is since then exclusive owner of the suit property. However the plaintiff being employed in Air Force and posted away in the year 1995 allowed defendant No.1 to live on ground floor of the suit property as licensee out of love and affection being his brother. However, defendant No.1 has allowed his son defendant No.2 to run a meat shop in the verandah of the house on ground floor which is creating nuisance and also blocking passage of the plaintiff for upstairs. The plaintiff terminated license of defendant No.1 and asked the defendants to vacate the ground floor of the suit property, but they refused, forcing the plaintiff to file the instant suit. Defendants controverted the plaint allegations and pleaded that defendant No.1 is owner of ground floor of the suit property and defendant No.2 being his son is living there since birth and is running shop there for more than ten years. Plaint allegations were controverted. Alleged family settlement was denied. It was pleaded that under influence of the plaintiff, for the purpose of renovation of the suit property, collusive consent decree was passed in favour of plaintiff, but the plaintiff did not fulfill the promise. Affidavits were obtained by the plaintiff from all the brothers and sisters for renovation of the suit property, but by fraud and misrepresentation, those RSA No.4136 of 2010 (O&M) -3- affidavits were used for obtaining collusive decree. It was denied that defendant No.1 was licensee in the suit property. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Ambala Cantt. vide judgment and decree dated 26.03.2010 decreed the plaintiff's suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Ambala vide judgment and decree dated 30.09.2010. Feeling aggrieved, defendants have preferred the instant second appeal. I have heard the learned counsel for the appellants and perused the case file. Plaintiff has proved consent decree dated 23.01.1992 passed in his favour against all his brothers and sisters including defendant No.1, thereby declaring plaintiff to be exclusive owner in possession of the suit property. Defendant No.1 who was party to the said decree, did not challenge the said decree at any stage. Defendant No.1 has also admitted affidavit dated 05.01.1991 affirmed by him and other brothers and sisters that plaintiff is exclusive owner of the suit property and accordingly, plaintiff was so recorded in the municipal record since 1991. All the other brothers and sisters of the plaintiff and defendant No.1 have also supported the case of the plaintiff. Daulat Ram, Duli Chand and Faquir Chand (brothers of plaintiff and defendant No.1) have stepped in to witness box and deposed in favour of the plaintiff. Defendant No.1 has miserably failed to substantiate his plea of fraud and misrepresentation in obtaining affidavit dated 05.01.1991 and consent decree dated 23.01.1992. Moreover, the very fact that the said documents were never challenged by defendant No.1, would also depict that the same were not obtained by fraud and misrepresentation. RSA No.4136 of 2010 (O&M) -4- Defendant No.1 alleged that he is owner of the ground floor at the suit house. However, it was not even pleaded as to how he became owner of the ground floor of the suit house or there is any evidence to substantiate the said plea of the defendants. It is also worth mentioning that plaintiff had also filed separate suit for recovery of mesne profits against the defendants regarding the suit property. The said suit was also decreed vide judgment dated 28.01.2009 holding the defendants to be licensee in the suit property. The said finding has also attained finality as it is not the case of the defendants that they have preferred any appeal against the said judgment and decree. The plaintiff was also recorded to be exclusive owner of the suit property in the municipal record since the year 1991 i.e. for more than 15 years before the filing of the suit. The said entries were also not challenged by the defendants. The plaintiff has been paying house tax and other charges also for the suit property. Electricity connection in the suit property is also in the name of the plaintiff and so also the house tax bills. Defendant No.1 admitted that he did not get his name recorded in the municipal record nor he ever paid any house tax. It is thus manifest that plaintiff is owner of the suit property and defendant No.1 was licensee therein. Licensee of defendant No.1 stands terminated therefore, defendants have been rightly directed to surrender possession of the suit property to the plaintiff respondent. Learned counsel for the appellants contended that in spite of consent decree dated 23.01.1992, defendants remained in possession of the ground floor of the suit house and they were not licensees therein and therefore, the plaintiff could at best execute consent decree dated RSA No.4136 of 2010 (O&M) -5- 23.01.1992. The contention is completely misconceived and devoid of merit. Decree dated 23.01.1992 declared the plaintiff to be exclusive owner as well as in possession of the suit property. Consequently it cannot be said that defendant No.1 was in possession of ground floor of the suit house at the time of passing of the said decree. On the other hand, it is the case of the plaintiff that when he was posted out of Ambala Cantt. (where the suit property is situated) in the year 1995, he allowed defendant No.1 to live in ground floor of the house as licensee in the absence of the plaintiff. Thus defendant No.1 was inducted as licensee in ground floor of the house three years after the passing of the consent decree dated 23.01.1992. Question of executing the said decree did not arise as it was only declaratory decree declaring the plaintiff to be owner in possession of the suit property. For the reasons aforesaid, I find no merit in the instant second appeal. Both the courts below properly appreciated the evidence and recorded concurrent finding in favour of the plaintiff-respondent. The said finding is justified by the evidence on record and is supported by cogent reasons and is not shown to be perverse or illegal warranting interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine (L. N. MITTAL) JUDGE 03.12.2010 'raj'