RSA No. 1220 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No.1220 of 1986 Date of decision 25.5.2011 Dharam Pal and Others Appellants v Vijay Singh and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Vishal Aggarwal,Advocate for the appellants Mr.Y.K.Sharma,Advocate for the respondent No.1 None for respondent No.2 ... JITENDRA CHAUHAN,J. This regular second appeal has been filed against the judgment and decree dated 14.1.1986 passed by the ld. Ist Appellate Court whereby the judgment and decree dated 2.9.1983 passed by the ld.trial court, dismissing the suit of the plaintiff-respondents were set aside. The brief facts are that appellants Dharam Pal and Puran Chand brothers were held to be owners of house No.78, situated in Mohalla Kharian, Sanaur by the ld. trial court in suit No. 183 dated 5.6.1980 filed by Vijay Singh,plaintiff-resspondent against the appellants claiming himself to be the owner of the said house. Chet Ram (defendant No.3) is the brother of Vijay Singh. Earlier appellants filed a suit against Chet Ram for injunction claiming that they are the owners and Chet Ram is tenant under them. That suit was decreed by Sub Judge Ist Class, Patiala vide judgment dated 26.3.1977. Chet Ram filed an appeal, which was dismissed on 24.10.1979. The appellants filed an application for ejectment under the East Punjab Urban Rent Restriction Act, but the same was dismissed in default on RSA No. 1220 of 1986 2 17.4.1978. It is the case of the appellants that Chet Ram, defendant, in order to save his ejectment, got the present suit filed through his brother Vijay Singh claiming himself to be owner of the disputed house against the appellants-defendants. The appellants (defendant Nos. 1 & 2) contested the suit and filed written statement. Chet Ram,defendant No.3 was present in the court on 3.9.1980, as is apparent from the zimni orders of ld. trial court. He did not appear thereafter. Replication was filed. From the pleadings of the parties, the following issues were framed- 1. Whether the plaintiff is the owner in possession of the house in dispute?OPP 2. Whether the decree dated 26.3.1970 obtained by defendant Nos. 1 & 2 against defendant No.3 is illegal and void and is not binding on the plaintiff, as alleged in the plaint?OPP 3. Whether the defendant Nos. 1 & 2 are the owners of the house in dispute and defendant No.3 is occupying the same as their tenant? OPP 4. Whether the present suit has been filed in collusion with defendant No.3. If so, to what effect?OPD 5. Whether the present suit is not maintainable in the present form?OPD 6. Relief. While deciding isuse No.1, ld. trial court held that plaintiff has failed to prove that he was the owner of the disputed house. The Ld.trial court decided issue No.2 against the plaintiff and decided issue Nos. 3 & 4 in favour of the defendants (appellants); the ld.trial court while deciding issue No.5, observed that the suit in the present form is not maintainable. Hence the suit of the plaintiff was dismissed. Aggrieved against which, plaintiff Vijay Singh, filed an appeal before the Ld.Ist Appellate Court, which was allowed and the decree and judgment of the ld. trial court were set aside granting permanent injunction restraining the plaintiff-appellant to dispossess him from the house otherwise than in due course of law. RSA No. 1220 of 1986 3 Aggrieved by the said decree and judgment, the appellants have preferred this appeal. Learned counsel contends that earlier the appellant had filed a civil suit for ejectment against Chet Ram,respondent No.3, which was decreed. The order was maintained upto this Hon'ble Court. The litigation pertaining to the same house is not in dispute. He further contends that after having failed in the earlier round of litigation, in order to save ejectment,Chet Ram has got filed the present suit through his real brother Vijay Singh, which is not maintainable. He submitted that the ld.Ist Appellate has not gone into the evidence of ld. trial court and erroneously allowed the appeal of the respondents. He prays that the judgment and decree of ld. Appellate Court deserves to be set aside. I have heard the learned counsel for the parties and perused the record. The point for consideration in this appeal is “whether the ld.Appellate Court has erroneously set aside the well reasoned judgment of the ld. trial court'? A reading of order dated 2.9.1983 of ld.trial court shows that Dharam Pal and Puran Chand, appellants were the owners of the house, which fell to their share in a family partition out of the ancestral property. The house was rented out to Chet Ram by Puran Chand on 22.10.1964 at the rate of Rs.150/-p.m. The certified copy of rent deed Ex.DW 3/1 was produced in the suit No. 321 of 6.4.1971, titled Dharam Pal v. Chet Ram. Ex,DW3/2 is the certified copy of the agreement executed by Chet Ram in favour of Puran Chand for the arrears of rent of the house in dispute. These documents were thumb marked by Chet Ram. In 1971, appellants filed a RSA No. 1220 of 1986 4 suit against Chet Ram for ejectment from the house and also restraining the defendants from raising any construction. Said suit was decreed by Sub Judge Ist Class,Patiala and the said decree was maintained upto this Court. Certified copy of the decree is Ex.DW 3/3. Subsequently ejectment proceedings against Chet Ram were filed wherein Chet Ram appeared and tendered rent. Vide his statement Ex.DW 3/8 Chet Ram admitted that Vijay Singh, his real brother, being bachelor started residing with him in the same house after the same was rented out to him and Vijay Singh as such, has no separate identity. Therefore,from the facts, it is apparent that Vijay Singh was merely residing with his elder brother Chet Ram, it cannot be said that he was a tress-passer. As per the statements of Kartar Singh, DW 1, and Jit Singh,DW2, the appellants are the owners of the house in dispute and Chet Ram was tenant under them. The present litigation seems to be just an effort to frustrate the rights of the appellants from taking the possession despite the decree in their favour, which in my opinion is nothing else but mis-use of process of court. The Ld. Ist Appellate Court has not determined the question of status of the appellants. When the findings of the Ist Appellate Court are contrary to the record and are based on surmises and a great injustice has been done to the appellant by not rightly interpreting the facts of the case, it is always open to the High Court in second appeal to again reappraise the evidence and correct the findings of fact in accordance with law and to do justice. The observations of the Ist Appellate Court that Vijay Singh , who was residing with his brother, is not bound by the decree against his brother Chet Ram in RSA No. 1220 of 1986 5 favour of defendant Nos. 1 & 2 because he was not a party to it, is erroneous and perverse. It is not necessary for the appellants to implead all family members in ejectment suit residing with Chet Ram, tenant. Vijay Singh had no independent right to retain the possession of the house. Vijay Singh,plaintiff is not entitled to any discretionary relief of injunction as the suit is filed with malafide intention. Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches this Court. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. In view of the above, the appeal is allowed. The judgment and decree passed by the Ld.Ist Appellate Court are set aside and that of the Ld.trial court are restored. There is no order as to costs. (JITENDRA CHAUHAN) JUDGE 25.5.2011 ms Note:Whether to be referred to the Reporter? Yes/No.