IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Letters Patent Appeal No. 157 of 2007
Date of Decision: 10.03.2009
Benaras Kaur
... Appellant
Versus
The Deputy Secretary, Government of India, Department of
Rehabilitation, New Delhi and others.
... Respondents
CORAM: HON'BLE MR. JUSTICE J.S. KHEHAR
HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Ms. Jai Shree Thakur, Advocate,
for the appellant.
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HEMANT GUPTA, J.
The present appeal is directed against the judgement dated
24.07.86 passed by learned Single Judge of this Court in CWP No.
3349 of 1981, filed by the petitioner. The said Writ Petition was
decided alongwith RFA No. 1078 of 1980 and Cross Objection No.
137-CI of 1980 arising of a suit, wherein, the present appellant was
impleaded as one of the defendant.
One Sarup Singh, brother of the present petitioner, filed a
suit before learned Sub Judge 1st Class, Amritsar, claiming share in the
rental income in property No. 53/1, Court Road, Amritsar. It was
alleged that his father Saran Singh, was head of joint family. After
partition of Country, the family shifted to India. The plaintiff Sarup
Singh, executed a relinquishment deed agreeing to give up all rights in
the family property including right to succession to the estate of his
father except 1/7th share in the verified claim in immovable property for
which application for purchase had been filed before the Additional
Settlement Commissioner. The Additional Settlement Commissioner,
vide order dated 26.07.1962 accepted the claim of the plaintiff to the
extent of 1/8th share in the verified claim. Instead of using such verified
claim, Saran Singh, father of plaintiff purchased evacuee property No.
53/1, Court Road, Amritsar. The plaintiff thus claims to be co-sharer in
the said house by adjusting the verified claim. The defendants
including the present appellant constructed nine shops on the property
in dispute. Thus the plaintiff claims interest in the rental income of the
property purchased by his father.
The appellant raised a plea of ownership by adverse
possession in the written statement filed in the Civil Suit and that the
suit has been filed 12 years after the death of Saran Singh. It was also
pleaded that plaintiff Sarup Singh has executed release deed, thus, he
was debarred from filing the suit. It was also pleaded that Saran Singh
had purchased property in public auction and that the plaintiff has no
right in the property. The said suit was decreed by the learned trial
Court on 27.05.1980. The defendant-appellant filed Regular First
Appeal No. 1078 of 1980, directed against the said judgement and
decree.
The appellant herein filed Writ Petition No. 3349 of 1981
before this Court, challenging adjustment of Rs. 3102.17/- towards the
price of the property and the sale certificate. The petitioner claimed that
sale certificate be amended, so as to show that the petitioner alone is
the owner of property No. 53/1, Court Road, Amritsar.
Both the writ petition and the Regular First Appeal filed by
the defendant-appellant herein was dismissed, vide the order impugned
in the present appeal.
Admittedly, the appellant has not filed any appeal, arising
out of the civil suit, in which, the appellant was impleaded as
defendant. The civil suit filed earlier in point of time was decided on
merits, holding Sarup Singh-plaintiff, entitled to 1/7th share in the
property. Therefore, the present appeal, arising out of the writ petition
is not maintainable as no finding contrary to the findings by the learned
single Judge in civil suit can be recorded. Interference in the present
appeal will lead to contrary judgement in respect of the same issue,
which is not permissible.
Consequently, the present appeal is dismissed in limine.
(HEMANT GUPTA)
10.03.2009 JUDGE
Amodh
(J.S. KHEHAR)
JUDGE