R.S.A.No. 4109 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4109 of 2008 Date of decision: 7.12.2009 Lahori Ram ......Appellant Versus Kali Charan and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Lokesh Sinhal, Advocate, for the appellant. **** SABINA, J. Plaintiff -appellant filed a suit for declaration with consequential relief of permanent injunction, which was partly decreed by the Civil Judge (Jr.Divn.), Gurgaon vide judgment and decree dated 31.5.2006. Against the said judgment and decree, plaintiff; defendant No.1 and defendants No.2 and 4 filed three appeals separately. All the three appeals were dismissed by the Additional District Judge, Gurgaon vide judgment and decree dated 14.1.2008. 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. Plaintiff Lahori Ram is owner in possession of a residential house shown with letters ABCD in red colour in the site plan attached with the plaint bearing municipal R.S.A.No. 4109 of 2008 2 No.132-A, House No.432/10, New Colony, Gurgaon, detailed in para No.1 of the plaint. Smt. Usha, Suman and Madhu, defendants No. 6 to 8, daughters of Dwarka Dass, are real sisters of the plaintiff; defendant No.5 is widow and defendants No.1 to 4 are sons and daughters of Shyam Sunder, deceased brother of the plaintiff. Property in dispute was purchased by Dwarka Dass father of plaintiff, defendants No. 6 to 8 and Shyam Sunder from Om Parkash Saini vide registered sale deed dated 18.7.1956. In this way Dwarka Dass became exclusive owner in possession of the suit property. Dwarka Dass died in the year 1964 and after his death plaintiff, defendants No. 6 to 8 and Shyam Sunder became owners in possession of the house in dispute. Another daughter of Dwarka Dass Pushpa also died long time back issueless. In the record entries were changed regarding ownership and possession of the suit property in favour of Smt.Bashesar Devi widow of Dwarka Dass with the consent and knowledge of the plaintiff. Shyam Sunder and defendants No. 6 to 8. Earlier Shyam Sunder was in service at Faridabad and in the year 1971 Shyam Sunder requested the plaintiff to arrange some amount for purchasing a house or plot at Faridabad as he desired to live at Faridabad. In these circumstances, in the year R.S.A.No. 4109 of 2008 3 1970, a family settlement took place in between the parties to the suit in the presence of mother of the parties. Sufficient amount was given to Shyam Sunder and Shyam Sunder relinquished all his rights or interest in the suit property. Defendants No. 6 to 8 were also compensated with cash amount, ornaments and other valuable articles. Settlement took place that after death of Smt.Bashesar Devi the suit property will be exclusively owned and possessed by the plaintiff and the defendants shall have no right or interest of any type. Smt.Bashesar Devi died in the year 1979 and after her death plaintiff became exclusively owner in possession of the suit property. Plaintiff is paying house tax regularly by the entries in the record are still in the name of Smt.Bashesar Devi. It is pleaded that the entries in the name of Smt.Bashesar Devi in the municipal record are illegal, wrong and liable to be corrected. Defendants No.1 to 5 want to obtain possession of the land in dispute forcibly and illegally without any right or interest. The present suit has been filed by the plaintiff for a decree for declaration to the effect that plaintiff is exclusively owner in possession of the house in dispute detailed in para No.1 of the plaint and defendants have no right or interest in the suit property. It is also prayed that defendants No. 1 R.S.A.No. 4109 of 2008 4 to 5 be restrained from interfering in the peaceful possession of the plaintiff over the suit property and to restrain the defendants from alienating the suit property to any other person. It is prayed that the suit of the plaintiff be decreed with costs. 3. Defendants No.6 and 7 filed written statement admitting the pleas taken by the plaintiff in his plaint. Defendants No.1 to 5 and 8 filed written statement on the plea that the plaintiff has no locus standi to file the present suit; that the suit is not maintainable in the present form; that the suit is time barred; that the plaintiff is estopped from filing the present suit by his own acts and conduct; that the suit has not been properly valued for the purposes of court fees and jurisdiction. It is denied that the plaintiff is in exclusive possession of the house in dispute. It is admitted that earlier Dwarka Dass was owner in possession of the suit property. It is also not disputed that Dwarka Dass died in the year 1964. It is pleaded that at the time of death of Dwarka Dass, plaintiff, his brother Shyam Sunder, Usha and Smt.Bashesar Devi had attained the age of majority; defendants No. 7 and 8 were minors at that time. The minors were not capable to give their consent regarding any family settlement. It is denied that Shyam Sunder R.S.A.No. 4109 of 2008 5 requested the plaintiff to arrange some money for him for purchasing a house or plot at Faridabad. It is denied that any such family settlement, as mentioned in the plaint, took place in the year 1970 in between the parties to the suit in the presence of Smt. Bashesar Devi. It is also denied that suit property fell to the share of plaintiff and sufficient funds were provided by the plaintiff to Shyam Sunder for purchasing a house at Faridabad. It is also denied that Shyam Sunder relinquished his rights and interest in the suit property in favour of plaintiff. It is also denied that defendants No. 6 to 8 were compensated with cash amount, ornaments and valuable articles. It is also denied that any such settlement took place or that plaintiff became owner of the suit property after death of Smt.Bashesar Devi. It is pleaded that in fact house tax etc. are being paid jointly by the owners. Shyam Sunder was working as tuner in Metal Box India Ltd. Faridabad and was having sufficient income to bring up his family. A house was got allotted by Shyam Sunder in the name of his wife Usha Rani defendant No.5 and he paid instalments of that house in the beginning at the rate of Rs. 48/- per month and later on at the rate of Rs.67/- per month from his salary income. The instalments were completed in the month of December, 1995. Loan was R.S.A.No. 4109 of 2008 6 also obtained in this regard by Shyam Sunder from maternal uncle of defendants No. 1 to 4. It is also denied that defendants threatened to obtain possession of the house in dispute forcibly or that they have threatened to alienate the suit property. It is prayed that the suit of the plaintiff be dismissed with compensatory cost.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is exclusive owner in possession of the residential house as detailed in para No.1 of the plaint? OPP 2. Whether the parties to the suit i.e. (plaintiff and Shyam Sunder) entered into a family settlement in the year 1970 in the presence of mother of the parties as a consequence of which the plaintiff gave sufficient funds to Shyam Sunder who wanted to construct a plot in Faridabad and the sale property came to the share of the plaintiff? OPP 3. Whether the defendants No. 6 to 8 were compensated as cash amount and ornaments and other valuables at the time of family settlement ? OPD 4. Whether the plaintiff alone is making the payment of house tax and other taxes in respect of house in question? OPD R.S.A.No. 4109 of 2008 7 5. Whether the entries in the revenue record in favour of Smt.Basheran are illegal and wrong and hence liable to be corrected? OPD 6. Whether the suit of the plaintiff is not maintainable in the present form? OPD 7. Whether the plaintiff has no locus standi to file the present suit by his act and conduct? OPD 8. Whether the suit is time barred.? OPD 9. Whether the plaintiff is estopped from filing the present suit? OPD 10. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 11. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff-appellant filed a suit for declaration that he was exclusive owner in possession of the house in dispute. The defendants had taken undue advantage of the wrong entries in the municipal record and had started interfering in his peaceful possession. The case of defendants No. 1 to 5 and 8 was that they were joint owners in possession of the suit land along with the plaintiff. Dwarka Das was, admittedly, owner of the house in dispute. After his death his wife Bashesari Devi, plaintiff, his brother Shyam Sunder and defendants No. 6 to 8 became owners of the house in R.S.A.No. 4109 of 2008 8 dispute. After death of Shyam Sunder, defendants No. 1 to 5 became owners of the house in dispute qua the share of Shyam Sunder. After marriage of defendants No.6 to 8 and death of Dwarka Das and Smt.Bashesari Devi, the plaintiff came in exclusive possession of the house in dispute. Shyam Sunder and his family members started residing in Faridabad before the year 1970. After death of Dwarka Das, entries in the Municipal Committee record were liable to be changed in favour of all his legal heirs and not in favour of his wife alone. Since the plaintiff was in exclusive possession of the house in dispute, the Courts below rightly held that he could not be dispossessed from the suit land forcibly. The plaintiff-appellant has claimed that, in fact, he should have been declared as exclusive owner of the suit property. However, the said relief could not have been granted to the appellant as he was not the sole owner of the property in dispute. The property in dispute had been inherited by all the legal heirs of Dwarka Das after his death. Merely because Shyam Sunder had started residing at Faridabad, does not mean that he had relinquished his share in the suit property. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 07, 2009 anita