IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 1730 of 2003 Date of Decision: 11.5.2010 Chief Khalsa Diwan. .......Appellant through Shri Kanwaljit Singh, Senior Advocate with Ms.Sukhwinder Kaur, Advocate. Versus Parduman Singh (since deceased and represented by his legal representatives). .......L.Rs. of Respondent through Shri M.S.Bedi, Senior Advocate with Ms.Mandeep Kaur, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.5001-C of 2003 Allowed as prayed for. C.M.No.5002-C of 2003 The application is allowed and delay of one year, one month and fifteen days in refiling of the appeal is condoned. C.M.No.5003-C of 2003 Allowed as prayed for. R.S.A.No.1730 of 2003 (O&M) -2- .... R.S.A.No.1730 of 2003 & C.M.No.5004-C of 2003 The plaintiff is in second appeal. A suit for permanent injunction was filed by the plaintiff seeking to restrain defendant-Sardar Parduman Singh (since deceased and now represented by his legal representatives) from interfering in the use of the upper storey of the building described in the plaint and from preventing it from carrying out repairs and renovation thereof in accordance with the site plan attached therewith. A prayer for mandatory injunction was also made requiring the defendant to vacate the premises in his possession. The plaintiff pleaded that it was owner of the building which has seven shops and a stair-case; that these shops have been rented out to different tenants; that earlier Jagjit Singh was owner of the building who had created a trust named as “Akal Charitable Trust' which finally merged into Chief Khalsa Diwan, i.e., the plaintiff, which is a religious, charitable and educational institution and registered under the Societies Registration Act of which Sardar Inder Singh is the Secretary and he is competent to file the suit; that at the time of creation of trust, the defendant was given only the upper storey of the building to reside in by Sardar Jagjit Singh and he had no authority to carry out any changes therein; that now the defendant had locked the stair case and prevented the access of the plaintiff and its employees to reach upper storey; that the defendant had also demolished the stair-case and removed the almirah and added that place to the shop; that the defendant,by doing so, forfeited his right to remain in the building; that his possession was of a licensee and on his violating the terms of the R.S.A.No.1730 of 2003 (O&M) -3- .... licence, the same stands revoked. On the basis of the aforementioned pleadings, the prayer in the manner which has been detailed above was made. Upon notice, the defendant appeared and filed a written statement contesting the suit. He denied that the plaintiff was owner of the building. It was claimed that he along with his brothers and sisters was owner thereof and the shops were rented out by him. It was pleaded that the trust was allegedly created in the year 1981 when Jagjit Singh was not owner of the building; that in that year his mother- Surinder Kaur and Jogeshjit & Paramjit Singh were owner thereof; that after the death of Surinder Kuar, the defendant, his brothers and sisters became owner of her share in the building; that since Jagjit Singh was not owner of the building, he could not have given it to the trust and that the plaintiff had no right over the building. The parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to the injunction as prayed for?OPP 2. Whether the defendant has right to make alteration in the suit property for proper maintenance?OPD 3. Whether the plaintiff has no locus standi to file the present suit?OPD 4. Whether the suit of the plaintiff is false?OPD 5. Whether there is no cause of action for the plaintiff?OPD 6. Whether the suit is bad for misjoinder and nonjoinder of R.S.A.No.1730 of 2003 (O&M) -4- .... necessary parties?OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 8. Relief. Both the Courts below returned the findings against the plaintiff and concluded that it has no right over the building. In the instant appeal, learned counsel for the plaintiff-appellant contended that the plaintiff being a charitable trust and in whose favour the building had been bequeathed by Sardar Jagjit Singh, was entitled to use the same in the manner it wished and the defendant could not interfere in its possession. He further contended that the findings recorded by the Courts below are perverse and are liable to be set aside. On the other hand, learned counsel for the legal representatives of the defendant, supported the impugned judgments and submitted that the appeal be dismissed. After hearing the learned counsel for the parties and perusing the impugned judgments, I am of the opinion that there is no dispute that Jagjit Singh was owner of the building, but the claim of the plaintiff- appellant seems to be misplaced. A reading of Exhibit D1 and Exhibit D2, reveals that on an earlier occasion, a suit had been filed by one Bibi Satish T. Rana against her father- Sardar Jagjit Singh, the defendant and other family members for joint possession and in the alternative for possession by way of partition of various properties/ lands, wherein a decree had been passed on the basis of a compromise arrived at inter se R.S.A.No.1730 of 2003 (O&M) -5- .... between the parties and according to which, the building in question, i.e., property bearing no. EK/232, came to the share of Surinder Kaur. Exhibit D1 is the compromise, whereas Exhibit D2 is the decree passed on its basis. This compromise was arrived at on 30.11.1966 in which building no.EK/232, Chowk Bhagat Singh, Jalandhar has been mentioned at no.1 and the decree was passed on 19.12.1966. The relevant part of this compromise is extracted below:- “ Suit for possession (joint) or in the alternative possession by way of partition of the following properties: (I) One house three storied No. EK/232, Chowk Bhagat Singh, bounded as follows:- East: Chowk Bhagat Singh Road, West: Shops of other person, North: Railway Road leading to Phagwara Gate, South: Mandi road,leading to mills, in the City of Jullundur. (II)xx xx xx xx xx (III) xx xx xx xx xx xx xx xx xx xx xx The above properties shall be put in the name of Smt.Surrender Kaur defendant and shall be got mutated in her name in the revenue records. xx xx xx xx xx xx xx xx Smt.Surinder Kaur shall be entitled to sell or mortgage above properties for the payment of the loans and shall be R.S.A.No.1730 of 2003 (O&M) -6- .... accountable to the parties for the amounts received from such transactions. xx xx xx xx xx xx xx (VIII) House No. EK/232 Chowk Bhagat Singh,Jullandur shall be property of Smt. Surrinder Kaur one half and Jogeshjit Singh and Paramjit Singh, one half each of the later shall have one fourth share in the house. They shall be entitled to manage the property as they deem proper. Their ownership shall be absolute subject of course to the conditions that Sardar Jagjit Singh shall always be entitled to right of the residence in the share of Smt.Surrinder Kaur and Purdaman Singh shall have such a right in her share upto his marriage. (X) To Para No.VII a further condition shall be added that none of the three parties owning house no. EK/232 shall be entitled to sell or mortgage with his right in the property without the consent of the other two or the remaining party. xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx” Therefore, on the date on which the plaintiff claims to have received the building from Sardar Jagjit Singh, he was not capable of alienating the same. It is the case of the plaintiff that Sardar Jagjit Singh gave the building to the trust in the year 1981 and as observed above, he could not possibly have done so in view of the valid decree, Exhibit D2, R.S.A.No.1730 of 2003 (O&M) -7- .... which remained un-assailed by any of the parties till the time Sardar Jagjit Singh died in the year 1988. There is no material to show that the aforesaid decree was ever set aside in any proceedings or that Sardar Jagjit Singh reverted back to his ownership qua the building in question subsequent to the passing thereof. In the absence of such material, the plea of the plaintiff that the building had been given to the trust by Sardar Jagjit Singh cannot be accepted. No infirmity in the findings recorded by the Courts below could be pointed out by learned counsel for the plaintiff-appellant. There is no question of law, much less a substantial question of law that arises for consideration of this Court. The appeal being without any merit is dismissed. May 11,2010 ( Mahesh Grover ) “SCM” Judge