R.S.A.No. 1577 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1577 of 2009 (O&M) Date of decision: 30.7.2009 Gopal Chand ......Appellant Versus Kartari @ Kartar Kaur .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sandeep Arora, Advocate, for the appellant. Mr.Malkeet Singh, Advocate, for the respondent. **** SABINA, J. Plaintiff Kartari @ Kartar Kaur filed a suit for possession, which was decreed by the Civil Judge (Jr.Divn.) Phillaur vide judgment and decree dated 14.3.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, Jalandhar vide judgment and decree dated 11.2.2009. Hence, the present appeal. 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. In brief, the facts of the suit of the respondent (hereinafter called as the plaintiff) as set up by her in the R.S.A.No. 1577 of 2009 (O&M) 2 plaintiff before learned lower Court are that she is widow. She had already lost her husband and son. She is living in critical condition. Long time back, her husband was allotted House No.45 constructed by the Government for the Schedule caste community. The possession of the house was delivered to the husband of the plaintiff and they were residing there. Her husband died in the year 1989. After his death, plaintiff remained in possession of the house in dispute. Defendant Gopal Chand is high handed person. He with the help of other anti social elements, took forcible possession of the house in dispute from the plaintiff on the ground that it was allotted to him by the Government. In the year 1991, defendant filed frivolous suit against her in the Court of Sh.S.K.Sharma, Sub Judge, First Class, Phillaur for permanent injunction by concealing true facts. That suit was decreed on 14.9.1992 against the plaintiff i.e. Kartari. She obtained the certified copy of judgment and decree dated 14.9.1992 on 17.2.2004. All this time she tried to take possession of the house in dispute from the plaintiff lawfully. She so many times requested the defendant to deliver the vacant possession of the house in dispute but he refused which compelled her to file suit. It is, therefore, prayed that her suit for possession against the R.S.A.No. 1577 of 2009 (O&M) 3 defendant may be decreed with costs. 3. Defendant Gopal Chand in his written statement took preliminary objections such as that the suit is hopelessly time barred. The defendant is in established possession over the property in question for the last more than 25 years as owner of the suit property. Thus, the plaintiff has no locus standi and cause of action to file this suit by her act and conduct. Suit of the plaintiff is not maintainable in the present form. The plaintiff has concealed material facts. Site plan attached with the plaint is incorrect. On merits, it is submitted that the plaintiff or her predecessor in interest never resided in the suit property. The true facts are that the defendant constructed the house over the suit property and living there with his family members for the last more than 25 to 30 years peacefully. The answering defendant never took possession of the suit property from the plaintiff. It is correct that the answering defendant filed suit for permanent injunction against the plaintiff, which was decreed. Now the defendant is in long uninterrupted and continuous possession over the suit property for the last 25 to 30 years. The plaintiff has no right, title or concern with the suit property. All other parawise contents of the plaint have been denied and prayed for dismissal of the R.S.A.No. 1577 of 2009 (O&M) 4 suit with costs”. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is entitled to possession of house in dispute? OPP 2. Whether plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether suit is time barred? OPD 4. Whether suit is not properly valued for the purpose of court fee and jurisdiction? OPD 5. Whether suit is not maintainable in the present form ? OPD 6. Whether plaintiff is estopped by her own act and conduct to file the present suit? OPD 7. Whether suit is bad for mis-joinder and non- joinder of necessary parties? OPD 8. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff has filed a suit for possession with regard to suit property. The case of the plaintiff is that the house in question was allotted to her husband being of Scheduled Caste community along with other persons. Husband of the plaintiff died in the year 1989. As per the revenue record and the copy of jamabandi Ex.P-1 R.S.A.No. 1577 of 2009 (O&M) 5 for the year 1996-97, Swarana @ Saunda son of Thakur was allotted a plot along with others. Defendant, however, failed to establish that the plot in question had ever been allotted to him. It was argued by the learned counsel for the defendant before the Courts below that the defendant had become owner of the house in dispute by way of adverse possession. However, the defendant in an earlier suit filed by him in the year 1991 for permanent injunction had taken the plea that he was owner of the house in dispute and hence, the argument raised by learned counsel for the defendant that the defendant had become owner of the house in dispute by way of adverse possession was rightly repelled. The suit filed by the defendant for permanent injunction was decreed on 14.9.1992 and it was ordered that the present defendant Gopal Chand could not be dis-possessed from the house in dispute except in due course of law. Hence, the suit was filed by the plaintiff for possession within twelve years of the passing of the decree. In these circumstances, the Courts below rightly held that the suit filed by the plaintiff was within limitation. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 30, 2009 anita