In second appeal, the High Court dismissed the plea challenging the first appellate court's finding that the defendant is a co-owner of the suit property, relying on a subsequent suit for possession adjudicating the same issue.
Second appeal dismissed.
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RSA No.1874 of 1990
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1874 of 1990
Date of decision:- 23.04.2012
Bhupinder Singh & others
....Appellants
Vs.
Amrik Singh ....Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
Present: None for the appellants.
Mr. I.K.Mehta, Senior Advocate, with Mr. M.S.Kohli, Advocate, for the respondent.
HEMANT GUPTA, J. (Oral)
Plaintiffs are in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby the defendant's appeal was accepted and the suit for recovery of Rs.1620/- as mesne profits was dismissed.
Rai Singh – plaintiff filed a suit for recovery of Rs.1620/as mesne profits for alleged illegal use and occupation of property No.910 & 910/1 subsequently re-numbered as 1242, Dana Mandi, Adampur, Tehsil Jalandhar for the period from 01.03.1984 to 28.02.1987 at the rate of Rs.45/- per month. The plaintiff alleged that the defendant is in illegal occupation of the same and, therefore, he is liable to pay for illegal use and occupation of the said premises.
The defendant contested the suit and pleaded that he and the plaintiff are the co-sharers of the suit property and, therefore, he is not liable to pay any mesne profits.
After considering the entire evidence, the learned trial
RSA No.1874 of 1990
2
Court decreed the suit relying upon the decree passed in the earlier two suits filed by the plaintiff claiming mesne profits. However, in appeal, learned first Appellate Court noticed the fact that subsequent to judgment and decree dated 25.09.1984 relied upon by the trial Court, the plaintiff has brought suit for possession against the defendant and for recovery of mesne profits. The defendant raised a plea of co-owner, which was accepted vide judgment and decree dated 09.03.1987 (Exs.D2 and D3 respectively).
The fact that the judgment and decree (Exs.D2 and D3 respectively) in a suit for possession has been passed subsequently has not been disputed in the memorandum of appeal. No substantial question of law has been framed in the memorandum nor arises for consideration, as findings have been recorded by the learned first Appellate Court on the basis of judgment and decree in a suit for possession, wherein a finding has been returned that the defendant is the co-owner.
In view of the above, I do not find that there is any patent illegality or irregularity in the findings recorded by the learned first Appellate Court or any substantial question of law arises for consideration in the second appeal.
Dismissed.
23.04.2012 (HEMANT GUPTA) Vimal JUDGE
1 issue framed by the court
Whether the first appellate court erred in holding the defendant to be a co-owner based on a subsequent suit for possession.
Bhupinder Singh
Amrik Singh
Hemant Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
