Shyam Lal vs Satyanarian And Others on 30 October, 2009

R.S.A.No. 1731 of 2009 (O&M)                                     1



      In the High Court of Punjab and Haryana at Chandigarh


                         R.S.A.No. 1731 of 2009 (O&M)
                         Date of decision: 30.10.2009


Shyam Lal
                                                       ......Appellant

                         Versus


Satyanarian and others

                                                     .......Respondents


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:    Mr. Sanjay Mittal, Advocate,
            for the appellant.

                  ****


SABINA, J.

Plaintiffs (legal representatives of Pehlad) filed a suit for

permanent injunction, which was partly decreed by the Civil Judge

(Sr.Divn.), Narnaul vide judgment and decree dated 9.12.2005. In

appeal, the said judgment and decree were upheld by the Additional

District Judge, Narnaul vide judgment and decree dated 22.1.2009.

Hence, the present appeal by plaintiff No.2.

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 Pehlad Singh has brought suit for
R.S.A.No. 1731 of 2009 (O&M) 2

permanent as well as mandatory injunction with the

averments that the plaintiff is tenant in a kothri (shop)

shown by ABCDEFGH in the site plan attached with the

plaint and he is doing the Halwai work in this premises.

In front of the kothri the plaintiff has constructed Bhatti for

preparing sweets etc. and he has put tin shed over it.

Earlier disputed site was taken by the plaintiff on lease

from defendant No.3 and now defendant No.1 has

purchased the disputed site along with other property

from defendant No.3 and now the defendants in collusion

with each other want to dispossess the plaintiff from the

suit property. Earlier also plaintiff Pehlad had filed a suit

against Municipal Committee and the same was

dismissed to the extent that the plaintiff has no concern

with site of the Bhatti. It is pleaded that disputed site is

not a part of the property purchased by defendant No.1

from defendant No.3 on 9.7.1986 but despite that

defendants want to oust for plaintiff forcibly. Hence, this

suit . During the pendency of suit, Pehlad died and his

legal representatives were brought on record.

3. The suit has been contested by defendant

No.1. It is pleaded by defendant No.1 that Pehlad had

taken a kothri beneath the stair of 9 ft. x 7 ft. on lease

from Municipal Committee for one ear but the vacant site
R.S.A.No. 1731 of 2009 (O&M) 3

in front of kothri or Chabutra or tin shed was never let out

to Pehlad by the Municipal Committee and he had no

concern with the site in front of kothri and he has no right

to put tin shed over it and to construct his Bhatti. It is

pleaded that defendant No.1 has purchased the disputed

kothri along with other properties from Municipal

Committee vide sale deed No.917 dated 6.7.1986 for

Rs.1,80,000/-. Defendant No.1 requested the plaintiff to

vacant the kothri. It is pleaded that in front of kothri there

is site of defendant No.1 and after that there is common

passage and as such there is no question to put Bhatti in

from of kothri. Preliminary objections, with regard to

maintainability of suit in present form and cause of action

have also been taken . It is pleaded that suit be

dismissed.”

On the pleadings of the parties, following issues were

framed by the trial Court:-

“1. Whether plaintiff is tenant in possession on

the suit shop? OPP

2. Whether the defendants are intending to

forcibly eject plaintiff? OPP

3. Whether plaintiff is entitled to the injunction

prayed for? OPP

4. Whether suit is not maintainable in the present
R.S.A.No. 1731 of 2009 (O&M) 4

form? OPD

5. Whether the plaintiff has no cause of action to

file the present suit? OPD

6. Relief. “

After hearing learned counsel for the appellant, I am of

the opinion that the present appeal is devoid of any merit and

deserves to be dismissed.

Suit of the plaintiffs was partly decreed by the trial Court

to the effect that the defendants were restrained from interfering in

the possession of the plaintiffs over the kothri shown in the site plan

except in due course of law. The plaintiffs were also entitled to use

the land situated between their kothri and the Municipal road,

towards its Eastern side, but they were held not entitled to cover the

said portion or to raise permanent construction thereon. The appeal

filed by the appellant-plaintiff No.2 against the said judgment and

decree was dismissed by the lower Appellate Court. Now plaintiff

No.2 has filed this regular second appeal.

There is no dispute that the kothri in question was let out

by Municipal Committee to Pehlad and further defendant No.1

purchased the same along with the other plots from the Municipal

Committee. Defendant No.1 is the owner of the kothri in dispute.

Civil suit No.636 of 1990 was filed by Pehlad against Municipal

Committee for permanent injunction regarding the property in

dispute. The said suit was decreed in favour of Pehlad regarding
R.S.A.No. 1731 of 2009 (O&M) 5

the kothri and the suit regarding tin shed and platform (Chabutra)

and Bhatti in front of the kothri was dismissed. Since the plaintiffs

are tenant under defendant No.1, the Courts below rightly held that

they were only entitled to use the land between the kothri and the

Municipal road but were not entitled to cover the said portion by a tin

shed as the said portion was owned by the Municipal Committee and

was part of public passage/road.

No substantial question of law arises in this regular

second appeal. Accordingly, the same is dismissed.

                                                (SABINA)
                                                 JUDGE
October    30, 2009
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