R.S.A.No. 2395 of 2006 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2395 of 2006 (O&M) Date of decision: 4.11.2009 Onkar Singh ......Appellant Versus Sham Lal and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. R.K.Arya, Advocate, for the appellant. Mr.Vipin Mahajan, Advocate, for respondents No.1 and 2. **** SABINA, J. Plaintiff Onkar Singh filed a suit for mandatory injunction, which was decreed by the Additional Civil Judge (Sr.Divn.), Gurdaspur vide judgment and decree dated 11.5.2005. In appeal, the said judgment and decree were set aside by the District Judge, Gurdaspur vide judgment and decree dated 27.2.2006. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. Onkar Singh filed main suit for mandatory R.S.A.No. 2395 of 2006 (O&M) 2 injunction on the allegations that he is the owner of the shop in dispute fully described in the heading of the plaint. Site underneath the shop was obtained from the Wakf Board. After that shop was constructed by the plaintiff, after permission was obtained from the Punjab Wakf Board and getting site plan approved from the Municipal Committee. That the parties entered into partnership in the business. Partnership deed dated 10.1.1990 was executed amongst the parties and as per partnership deed, net profit was to be divided amongst the parties. After cancellation of partnership deed and settling the accounts, shop in question is to remain with the plaintiff. That the partnership deed was duly executed in the presence of the witnesses. That after the cancellation of partnership deed, defendant had no concern with the shop in question. That the defendant requested the plaintiff to allow him to carry on business in the shop for some time with a request that shop is to be vacated after a month or so and when required by the plaintiff. As per request of the defendant, plaintiff allowed the defendant to carry on business in the shop as a licensee but after the license was revoked, defendant was requested to hand over the vacant possession of the shop but he did not agree. R.S.A.No. 2395 of 2006 (O&M) 3 3. Upon notice, defendants appeared and filed written statement and contested the suit inter alia on the ground that plaintiff has no locus standi and cause of action to file the present suit and the suit is not maintainable in the present form. That the suit is not within limitation and is bad for non-joinder of necessary parties. That the suit is barred under order 2 Rule 2 CPC. On merit allegation of the defendant is that he is owner of the shop in question. That the land underneath the shop was let out to the plaintiff by the Wakf Board but the shop was constructed by the defendants. Plaintiff did not spend even a single penny to raise construction. That the alleged partnership deed was not acted upon. Partnership deed in fact is a license deed. Wakf Board had cancelled the allotment of the land underneath the shop granted in favour of the plaintiff. So the plaintiff has no right, title or interest in the property in dispute. Land underneath the shop was allotted to the defendant w.e.f. 24.8.1993. That the defendants are in possession of the shop as an allottee of Punjab Wakf Board and denied all other allegations. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is the owner of the shop R.S.A.No. 2395 of 2006 (O&M) 4 detailed and described in the head note of the plaint? OPP 2. Whether after cancellation of the partnership between the parties, the plaintiff was entitled to remain owner in possession of the disptued shop? OPP 3. Whether the defendant is the licencee of the plaintiff in the disputed shop? OPP 4. Whether after cancellation of the licence of the defendant, he has become a trespasser of the disputed shop? If so to what effect? OPP 5. Whether the plaintiff has got no locus standi to file the present suit? OPD 6. Whether suit of the plaintiff is not maintainable in the present form? OPD 7. Whether suit of the plaintiff is time barred ? OPD 8. Whether the suit is bad for non-joinder of necessary parties? OPD 9. Whether the disputed shop was constructed by the defendant? OPD 10. Whether the land underneath the disputed shop has been allotted to the defendant by the Punjab Wakf Board? OPD 10-A Whether suit is barred under Order 2 rule 2 R.S.A.No. 2395 of 2006 (O&M) 5 CPC? 11. Relief. Learned counsel for the appellant has submitted that the lower Appellate Court had erred in allowing the appeal filed by the respondents. The suit of the plaintiff had been rightly decreed by the trial Court. The suit property had been leased out to the plaintiff by the Wakf Board. The partnership entered into between the plaintiff and the defendants to run a joint business had been dissolved and hence, the plaintiff was entitled to get the possession of the shop in dispute. In support of his arguments, learned counsel has placed reliance on Salochna Devi v. Jagat Singh 2000(3) Civil Court Cases 136 (P&H), wherein it was held that the suit for mandatory injunction with a direction to the defendants to vacate the premises was maintainable as the defendants were mere licensees and the plaintiff was a licensor. Learned counsel for the appellant has also placed reliance on Laisram Noyon Singh vs. Miajan Mia and others AIR 1969 Manipur 49 (V 56 C17), wherein it was held that a judgment in a former suit under Section 9 of the Specific Relief Act between the same parties would not act as res judicata in a subsequent title suit between them. Learned counsel for the appellant has further placed reliance on the decision of the Apex Court in Joseph Severance and others vs. Benny Mathew and others 2005 (4) RCR (Civil) R.S.A.No. 2395 of 2006 (O&M) 6 559, wherein it was held that the suit filed by licensor for mandatory injunction with a prayer to direct the licensee to vacate the premises was maintainable. Learned counsel for the appellant has next placed reliance on the decision of the Apex Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair and others 2004 (1) Apex Court judgments 242 (SC), wherein it was held that where in an earlier suit prayer for injunction was rejected as plaintiff was not found to be in possession of the property then subsequent suit for recovery of possession with mesne profits was maintainable. Learned counsel for the respondents, on the other hand, has submitted that the suit of the plaintiff was liable to be dismissed as the licence in favour of the plaintiff had been cancelled by the Wakf Board and the shop in dispute had been allotted to the respondents. The suit was not maintainable. In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in Sanjay Kumar Pandey and others v. Gulbahar Sheikh and others (2004) 4 Supreme Court Cases 664, wherein it was held as under:- “4. A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. R.S.A.No. 2395 of 2006 (O&M) 7 Sub Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this Section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, admittedly, the suit land belongs to the Wakf Board. The case of the plaintiff is that he had raised construction over the plot leased out to him by the Wakf Board, whereas, the case of the respondents is that the shop in dispute had R.S.A.No. 2395 of 2006 (O&M) 8 been constructed by them. Plaintiff filed a civil suit bearing No.142 dated 26.8.1996 for possession of the shop in dispute along with other shops against Wakf Board, Anil Kumar, Sham Lal, Ram Lal and Vijay Kumar. The said suit was dismissed by the trial Court on 7.10.1999. It was observed in the said judgment Ex.D-5 that the plaintiff, in his cross-examination, had admitted that the Wakf Board had allotted the shops in dispute to defendants No.2 to 5. Defendants No.2 to 5 were allotted disputed shops vide order dated 24.8.1993 w.e.f. 1.5.1993. The said finding was given by the Court after perusing the original allotment letters on record. It was further held that the suit filed by the plaintiff was not maintainable as it had been filed beyond the period of limitation. It was also observed that it was clear from the evidence on record that plaintiff Onkar Singh was a tenant under the Wakf Board and had sublet the plots in favour of different persons and instead of execution of rent note had got a partnership deed and consequently was getting a fixed sum equal to monthly rent. The said partnership deed was a sham document in order to avoid eviction on the ground of sublet. Thus, the respondents are in possession of the property owned by the Wakf Board w.e.f. 24.8.1993. The case of the respondents is that after the allotment in favour of the plaintiff was cancelled, the shops were allotted to them and, thereafter, they raised construction. Partnership deed dated R.S.A.No. 2395 of 2006 (O&M) 9 10.1.1990 was not believed by the Court in the civil suit No. 142 dated 26.8.1996. As per letter dated 2.8.1985, Wakf Board gave a liberty to raise construction to the plaintiff. However, the plaintiff failed to establish on record that he had raised construction after getting the site plan sanctioned from the Municipal Committee. The allegation of the plaintiff that he was dis-possessed after 25.3.1996 was dis- believed in civil suit No.142 dated 26.8.1996. As per the same, Sham Lal, Anil Kumar, Ram Lal and Vijay Kumar had been allotted shops in dispute since 24.8.1993, which were earlier leased out to plaintiff Onkar Singh by the Wakf Board. In these circumstances, learned Additional District Judge rightly held that the suit of the plaintiff was liable to be dismissed as the defendants had been allotted shops in dispute by the Wakf Board after the allotment of the same in favour of the plaintiff was cancelled. The license of the plaintiff had been revoked vide notice dated 3.10.1994. The judgments relied upon by learned counsel for the appellant failed to advance the case of the appellant as these are on different facts. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 04 , 2009 anita