R.S.A.No. 2396 of 2006 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 2396 of 2006 (O&M)
Date of decision: 4.11.2009
Onkar Singh
......Appellant
Versus
Vijay Kumar
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. R.K.Arya, Advocate,
for the appellant.
Mr.Vipin Mahajan, Advocate,
for the respondent
****
SABINA, J.
Plaintiff Onkar Singh filed a suit for mandatory injunction,
which was decreed by the Additional Civil Judge (Sr.Divn.),
Gurdaspur vide judgment and decree dated 11.5.2005. In appeal,
the said judgment and decree were set aside by the District Judge,
Gurdaspur vide judgment and decree dated 27.2.2006. 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. Onkar Singh filed main suit for mandatory
injunction on the allegation that he is the owner of the
shop in dispute fully described in the heading of the
R.S.A.No. 2396 of 2006 (O&M) 2plaint. That the shop was constructed by the plaintiff after
taking land underneath from the Punjab Wakf Board.
Construction was raised after getting permission from the
Punjab Wakf Board and getting site plan approved from
the Municipal Committee, Dinanagar. That the plaintiff
and defendant had entered into partnership in the
business. Partnership deed dated 10.1.1990 was
executed amongst the parties and as per partnership
deed, net profit was to be divided amongst the parties.
After cancellation of partnership deed and settling the
accounts, shop in question is to remain with the plaintiff.
That the partnership deed was duly executed in the
presence of the witnesses. That after the dissolution of
firm and after decreeing the suit of the plaintiff, defendant
had no concern with the shop in question. That the
defendant requested the plaintiff to allow him to carry on
business in the shop for some time with the assurance
that he will vacate the shop after a month or so and when
required by the plaintiff. On the assurance of the
defendant, plaintiff allowed the defendant to work in the
shop as a licensee. That the license was revoked.
Defendant was requested to hand over the vacant
possession of the shop but he did not agree.
3. Upon notice, defendant appeared and filed
R.S.A.No. 2396 of 2006 (O&M) 3written statement and contested the suit inter alia on the
ground that plaintiff has no locus standi and cause of
action to file the present suit and the suit is not
maintainable in the present form. That the suit is not
within limitation and is bad for non-joinder of necessary
parties. That the suit is barred under order 2 Rule 2 CPC.
On merit allegation of the defendant is that he is owner of
the shop in question. That the land underneath the shop
was taken by the plaintiff by the Wakf Board but the shop
was constructed by the defendant. Plaintiff did not
spend a single penny to construct the shop. That the
alleged partnership deed is a Sham Transaction and the
same was never acted upon. Partnership deed in fact is
a licence deed. Wakf Board had cancelled the allotment
of the land underneath the shop granted in favour of the
plaintiff. So the plaintiff ceased to have any right, title or
interest. Land underneath the shop was allotted to the
defendant w.e.f. 24.8.1993 and since then defendant is
in possession of the shop as an allottee of Punjab Wakf
Board and denied all other allegations.
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiff is the owner of the shop
detailed and described in the head note of the plaint?
R.S.A.No. 2396 of 2006 (O&M) 4OPP
2. Whether after cancellation of the partnership
between the parties, the plaintiff was entitled to remain
owner in possession of the disptued shop? OPP
3. Whether the defendant is the licencee of the
plaintiff in the disputed shop? OPP
4. Whether after cancellation of the licence of the
defendant, he has become a trespasser of the disputed
shop? If so to what effect? OPP
5. Whether the plaintiff has got no locus standi to
file the present suit? OPD
6. Whether suit of the plaintiff is not
maintainable in the present form? OPD
7. Whether suit of the plaintiff is time barred ?
OPD
8. Whether the suit is bad for non-joinder of
necessary parties? OPD
9. Whether the disputed shop was constructed
by the defendant? OPD
10. Whether the land underneath the disputed
shop has been allotted to the defendant by the Punjab
Wakf Board? OPD
10-A Whether suit is barred under Order 2 rule 2
CPC?
R.S.A.No. 2396 of 2006 (O&M) 5
11. Relief.
Learned counsel for the appellant has submitted that the
lower Appellate Court had erred in allowing the appeal filed by the
respondent. The suit of the plaintiff had been rightly decreed by the
trial Court. The suit property had been leased out to the plaintiff by
the Wakf Board. The partnership entered into between the plaintiff
and the defendant to run a joint business had been dissolved and
hence, the plaintiff was entitled to get the possession of the shop in
dispute. In support of his arguments, learned counsel has placed
reliance on Salochna Devi v. Jagat Singh 2000(3) Civil Court
Cases 136 (P&H), wherein it was held that the suit for mandatory
injunction with a direction to the defendants to vacate the premises
was maintainable as the defendants were mere licensees and the
plaintiff was a licensor.
Learned counsel for the appellant has also placed
reliance on Laisram Noyon Singh vs. Miajan Mia and others AIR
1969 Manipur 49 (V 56 C17), wherein it was held that a judgment in
a former suit under Section 9 of the Specific Relief Act between the
same parties would not act as res judicata in a subsequent title suit
between them.
Learned counsel for the appellant has further placed
reliance on the decision of the Apex Court in Joseph Severance
and others vs. Benny Mathew and others 2005 (4) RCR (Civil)
559, wherein it was held that the suit filed by licensor for mandatory
R.S.A.No. 2396 of 2006 (O&M) 6
injunction with a prayer to direct the licensee to vacate the premises
was maintainable.
Learned counsel for the appellant has next placed
reliance on the decision of the Apex Court in Kunjan Nair
Sivaraman Nair v. Narayanan Nair and others 2004 (1) Apex
Court judgments 242 (SC), wherein it was held that where in an
earlier suit prayer for injunction was rejected as plaintiff was not
found to be in possession of the property then subsequent suit for
recovery of possession with mesne profits was maintainable.
Learned counsel for the respondent, on the other hand,
has submitted that the suit of the plaintiff was liable to be dismissed
as the licence in favour of the plaintiff had been cancelled by the
Wakf Board and the shop in dispute had been allotted to the
respondent. The suit was not maintainable. In support of his
arguments, learned counsel has placed reliance on the decision of
the Apex Court in Sanjay Kumar Pandey and others v. Gulbahar
Sheikh and others (2004) 4 Supreme Court Cases 664, wherein it
was held as under:-
“4. A suit under Section 6 of the Act is often called a
summary suit inasmuch as the enquiry in the suit under
Section 6 is confined to finding out the possession and
dispossession within a period of six months from the date
of the institution of the suit ignoring the question of title.
Sub Section (3) of Section 6 provides that no appeal shall
R.S.A.No. 2396 of 2006 (O&M) 7lie from any order or decree passed in any suit instituted
under this Section. No review of any such order or
decree is permitted. The remedy of a person
unsuccessful in a suit under Section 6 of the Act is to file
a regular suit establishing his title to the suit property and
in the event of his succeeding he will be entitled to
recover possession of the property notwithstanding the
adverse decision under Section 6 of the Act. Thus, as
against a decision under Section 6 of the Act, the remedy
of unsuccessful party is to file a suit based on title. The
remedy of filing a revision is available but that is only by
way of an exception; for the High Court would not
interfere with a decree or order under Section 6 of the Act
except on a case for interference being made out within
the well settled parameters of the exercise of revisional
jurisdiction under Section 115 of the Code.”
After hearing learned counsel for the parties, I am of the
opinion that the present appeal is devoid of any merit and deserves
dismissal.
In the present case, admittedly, the suit land belongs to
the Wakf Board. The case of the plaintiff is that he had raised
construction over the plot leased out to him by the Wakf Board,
whereas, the case of the respondent is that the shop in dispute had
been constructed by him. Plaintiff filed a civil suit bearing No.142
R.S.A.No. 2396 of 2006 (O&M) 8
dated 26.8.1996 for possession of the shop in dispute along with
other shops against Wakf Board, Anil Kumar, Sham Lal, Ram Lal and
Vijay Kumar.
The said suit was dismissed by the trial Court on
7.10.1999. It was observed in the said judgment Ex.D-5 that the
plaintiff, in his cross-examination, had admitted that the Wakf Board
had allotted the shop in dispute to the defendant. Defendant was
allotted disputed shop vide order dated 24.8.1993 w.e.f. 1.5.1993.
The said finding was given by the Court after perusing the original
allotment letters on record. It was further held that the suit filed by
the plaintiff was not maintainable as it had been filed beyond the
period of limitation. It was also observed that it was clear from the
evidence on record that plaintiff Onkar Singh was a tenant under the
Wakf Board and had sublet the plots in favour of different persons
and instead of execution of rent note had got a partnership deed and
consequently was getting a fixed sum equal to monthly rent. The
said partnership deed was a sham document in order to avoid
eviction on the ground of sublet. Thus, the respondent is in
possession of the property owned by the Wakf Board w.e.f.
24.8.1993.
The case of the respondent is that after the allotment in
favour of the plaintiff was cancelled, the shop was allotted to him
and, thereafter, he raised construction. Partnership deed dated
10.1.1990 was not believed by the Court in the civil suit No. 142
R.S.A.No. 2396 of 2006 (O&M) 9
dated 26.8.1996.
As per letter dated 2.8.1985, Wakf Board gave a liberty
to raise construction to the plaintiff. However, the plaintiff failed to
establish on record that he had raised construction after getting the
site plan sanctioned from the Municipal Committee. The allegation of
the plaintiff that he was dis-possessed after 25.3.1996 was dis-
believed in civil suit No.142 dated 26.8.1996. As per the same,
Sham Lal, Anil Kumar, Ram Lal and Vijay Kumar had been allotted
shops in dispute since 24.8.1993, which were earlier leased out to
plaintiff Onkar Singh by the Wakf Board. In these circumstances,
learned Additional District Judge rightly held that the suit of the
plaintiff was liable to be dismissed as the defendant had been
allotted shop in dispute by the Wakf Board after the allotment of the
same in favour of the plaintiff was cancelled. The license of the
plaintiff had been revoked vide notice dated 3.10.1994.
The judgments relied upon by learned counsel for the
appellant failed to advance the case of the appellant as these are on
different facts.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
November 04 , 2009
anita