Dismissed

Gurdip Singh v. Isher Singh

Punjab & Haryana HC18 May 2009RSA/2422/1989

Case brief

AI extract

What is this about?

Appeal against a second appellate court decree which declared a plaintiff as the owner of a property alleged to be a public Gurdwara. The High Court rejected challenges regarding lack of Will proof and admitted the property was not a public trust, dismissing the appeal.

What did the court decide?

The appeal was dismissed, confirming the declaration of ownership in favor of the plaintiff.

Gurdip Singh Vs Isher Singh — Succession and Inheritance | Punjab & Haryana HC (2009)

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(1)

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RSA No.2422 of 1989

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2422 of 1989

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Date of Decision:23.7.2009

Gurdeep Singh

......Appellant

Versus

Ishar Singh

.......Respondent

CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.

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Whether Reporters of local papers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Present: Shri Amit Rawal, Advocate, for the appellant.

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Shri Sudhir Aggarwal, Advocate, for the respondents.

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HEMANT GUPTA, J. (Oral).

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The legal heirs of deceased-Gurdeep Singh are in appeal arising out of a suit for declaration wherein plaintiff claimed that he is owner in possession of the portion as described in the plaint.

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It was the case of the plaintiff that Smt. Mai Jeo, his mother was owner in possession of the property in dispute which was purchased from the Rehabilitation Department in an open auction on 1.11.1953. His mother raised construction on the said property and she executed a Will in favour of the plaintiff herein, which was registered on17.4.1965. Mai Jeo died in May, 1975. It was, thus, alleged that the plaintiff is the one, who is owner of the property owned by Mai Jeo, whereas defendant No.1 is his son, who was permitted to reside in the property. Defendant No.1 his son

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(2)

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RSA No.2422 of 1989

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and defendant No.2 his wife were permitted to reside in the property. It was alleged that defendant No.1 is a man of bad habits and defendant No.2 is playing in his hands. The plaintiff has asked the defendants to vacate the portion in their possession, but they refused to do so, which led to the filing of the present suit for declaration and for mandatory injunction.

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The suit was contested by defendant No.1-Gurdeep Singh, who asserted that the plaintiff is in illegal possession of the shops abutting G.T. Road and the suit is not maintainable. It was alleged that Mai Jeo was the owner of the property, which is known as Gurdwara Mai Jeo. The land was dedicated by Mai Jeo for religious purposes and the present building was constructed with the help of donations collected by Smt. Mai Jeo from the inhabitants of the locality. It was alleged that being a Granthi of Gurudwara Mai Jeo, the plaintiff has no right over the suit property.

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Though the earlier suit was partly decreed on 29.4.1982, but the said judgment and decree was set aside by the learned first Appellate Court on 27.3.1985 and matter remitted. It was, thereafter that the learned Trial Court decree the suit in its entirety holding that the plaintiff is proved to be owner of the suit property and that he is entitled to possession thereof. The appeal against the said judgment and decree was dismissed. The second appeal at the instance of defendant No.1 was admitted. However, a compromise Exhibit C.1 dated 26.3.1990 was filed before this Court. On the basis of the said compromise, the appeal was decided in terms thereof on 26.3.1990 itself. The said compromise was between Ishar plaintiff and Gurdeep Singh, defendant No.1. Subsequently, on an application filed by Hukam Kaur defendant No.1, the order disposing of the appeal, has been recalled. The order dated 26.3.1990 passed on the basis of compromise

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(3)

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RSA No.2422 of 1989

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Exhibit C.1 was set aside and the appeal was fixed for final arguments. It is thereafter that the present appeal has come up for final hearing before this Court.

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Learned counsel for the appellants has vehemently argued that the plaintiff has not proved the alleged Will of Smt. Mai Jeo, therefore, the plaintiff cannot claim any interest in the suit property. It is further argued that the property is a Gurdwara known as Gurdwara Mai Jeo and, therefore, being a Granthi of said Gurdwara, the plaintiff cannot claim declaration sought for. It is also argued that since Ishar Singh has conceded in the compromise dated 26.3.1990 that Gurdeep Singh is Granthi of Gurdwara Mai Jeo since 1963, the said admission of Ishar Singh can be used against Ishar Singh.

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Having heard learned counsel for the parties at some length, I do not find any merit in the present appeal.

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Even if the plaintiff has not been able to prove the Will propounded by him in his suit, but keeping in view the unsubstantiated fact that he is the only son of Mai Jeo, the estate of Mai Jeo, would vest in him. The argument that it was a Gurdwara and thus, a public charitable trust or the personal property of Mai Jeo has been examined by the learned trial Court and a finding returned that it is not proved as to whether the same was a public Gurdwara. From the entries of the House Tax Assessment Register, it was found that in one room Smt. Mai Jeo has kept Guru Granth Sahib, whereas 13 rooms were in self occupation. The house tax assessment register further shows that Ishar Singh has been paying house tax, but if the property was of Gurudwara, the house tax was not leviable. The plea that defendant No. 1 was Gaddi Nashin Mahant, was not found believable in

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(4)

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RSA No.2422 of 1989

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view of the admission of Gurdeep Singh that in 1971, he was got admitted by his father in I.T. Solan and from 1970-71 to 1975, he remained out of Ludhiana. In view of the said fact, the plea of defendant No.1 that the property is a public charitable trust or a Gurudwara has been rightly declined by the Courts below. Such finding is based upon proper appreciation of evidence.

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The argument that the admission in the compromise dated 26.3.1990 that Gurdeep Singh is a Granthi of Gurdwara Mai Jeo since 1963 is binding upon the plaintiff is again not tenable. The compromise was filed for the purpose of settling a dispute in appeal, but the same was found to be not binding. On the basis of such compromise, the appeal, which was disposed of has been restored. Therefore, once the appeal has not been disposed of on the basis of compromise, the same cannot be relied upon for any other purpose.

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Consequently, I do not find any patent illegality or material irregularity in the findings recorded or that the findings recorded give rise to any substantial question of law in the present second appeal.

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Hence, the present appeal is dismissed.

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(HEMANT GUPTA) JUDGE

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23-07-2009 ds

Gurdip Singh v. Isher Singh

Case brief

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What did the court decide?

Gurdip Singh v. Isher Singh

Case brief

What is this about?

What did the court decide?

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