In this second appeal, the High Court dismissed the suit for possession. The court held that the allotment letter showed only one brother as the allottee, negating the plaintiff's claim to be a co-allottee, and without proof of the brother's death, the plaintiff lacked locus standi.
The appeal was dismissed with no orders as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.330 of 2011 (O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.330 of 2011 (O&M) Date of decision: 26.5.2014
Jaspal Singh
......Appellant(s)
Versus
Jasbir Singh and others ......Respondent(s)
CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr. Gorakh Nath, Advocate for the appellant(s).
Rakesh Kumar Garg, J. (Oral)
This is plaintiff's second appeal challenging the judgement and decree of the Lower Appellate Court whereby the appeal of the defendantrespondents challenging the judgement and decree of the trial Court dated 20.1.2010 has been accepted and suit of the plaintiff-appellant has been ordered to be dismissed.
The plaintiff-appellant filed the instant suit for possession of the suit property alleging that he and his brother Jagir Singh were coallottees of the suit property along with Rajinder Kaur, their sister, who got married and shifted to her matrimonial home, whereas, the plaintiff along with his brother Jagir Singh continued to live in the suit property along with their families. Subsequently, Jagir Singh shifted out of Chandigarh along with his family in connection with his service and the physical possession of the suit property came to the plaintiff. Thereafter, Jagir Singh never came back and is missing. Even his wife has got herself settled with her parents. Defendant No.1 is the real brother of the plaintiff. Plaintiff agreed to allow
Saini Pushpinder 2014.05.30 13:29 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.330 of 2011 (O&M)
2
defendant No.1 to live in one room of the suit property. After sometime when defendant No.1 was approached for vacating the room, he refused to do the same. It is the further case of the appellant that on the intervening night of 31.5 2002/1.6.2002 defendant No.1 had forcibly entered into the the front and middle side rooms after breaking open the locks in his absence and thus, he is in unauthorised possession of the suit property. Therefore, necessity arose to file the suit for possession of the suit property.
Defendant-respondent No.1 contested the suit by filing the written statement and raising various preliminary objections. It was stated that the tenement in question was allotted on leasehold basis for 99 years and there was no provision for co-allottee. It was further stated that the said tenement was allotted in the name of Jagir Singh only and the plaintiff had no locus/right in the suit property. It was further stated that Jagir Singh had shifted out of Chandigarh along with his family in connection with his service and the plaintiff never resided in the house in question and came into possession of the suit property and thus, the suit was liable to be dismissed.
On the pleadings of the parties the following issues were framed:
“1. Whether the plaintiff is entitled for possession of
the suit property on the grounds mentioned in the petition? OPP
2. If issue No.1 is proved whether the plaintiff is entitled for the consequential relief, if so, as to what effect? OPD
3. Whether the suit has not been filed by the competent person? OPD
Saini Pushpinder 2014.05.30 13:29 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.330 of 2011 (O&M)
3
4. Relief."
After hearing counsel for the parties and considering the evidence on record, the trial court decreed the suit observing that the site in question was allotted in the name of Jagir Singh and the appellant was coallottee along with others whereas defendant-respondent No.1 had no right to stay in the premises as he was not a co-allottee.
Aggrieved from the aforesaid judgement and decree of the trial court, defendant No.1 filed an appeal before the Lower Appellate Court which was accepted vide judgement and decree dated 9.11.2010. The relevant part of the aforesaid judgement reads thus:
“7. The determinable question in this case is as to whether the plaintiff was a co-allottee of the suit property along with Jagir Singh or not. The case is based on documentary evidence. The plaintiff has proved on file the copy of form B as Ex.P1 as per which it is Jagir Singh s/o Kaka Singh who is shown to have been allotted the property in question. The plaintiff has not been shown as coallottee. The contention of the counsel for the plaintiff is that as in the pass-book the names of Jaspal Singh plaintiff along with others have been shown, so it can easily be said that the plaintiff is also the co-allottee of the suit property, in this regard it is observed that when copy of form B has been proved on record as Ex.P1 (PW5/A is also the same) by no stretch of imagination it can be said that the plaintiff Jaspal Singh is also the co-
Saini Pushpinder 2014.05.30 13:29 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.330 of 2011 (O&M)
4
allottee. Passbook cannot be said to be the base of allotment.
8. Even PW Varinder Kumar, Senior Assistant from the office of Estate Office Chandigarh who had brought the summoned record regarding tenement number old 364 and new No.1452/11, Sector 29-B, Chandigarh proved the copy of allotment letter as Ex.PW5/A (earlier it was Ex.P1). As per said allotment letter, the site was allotted in the name of Jagir Singh s/o Kaka Singh. It is further stated that other co-allottees in the allotment letter are Jaspal Singh, Balbir Kaur, Joginder Kaur sister and Jagir Singh itself. In this regard, it is observed that this witness has given evidence which is beyond the document. In Ex.P1 (Ex.PW5/A) the names of Jaspal Singh, Balbir Kaur and Joginder Kaur have not been mentioned as co-allottees. In the cross examination, this witness again stated that in the passbook it is nowhere stated that Jaspal Singh, Balbir Kaur, Joginder Kaur are co-allottees, (it is here observed that word not has wrongly been added in this sentence as is clear from the sentence itself and from the sentence which follows it). He further stated that the above-said persons are just family members as brothers and sisters. In the allotment letter also nowhere it is stated that the
Saini Pushpinder 2014.05.30 13:29 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.330 of 2011 (O&M)
5
above said persons are allottees. Premises is in the name of Jagir Singh s/o Kaka Singh.
9. So, from the above-said evidence it can easily be said that it was only Jagir Singh who is allottee and his wife, brother and sister were never co-allottees. So, it is concluded that the plaintiff is not the co-allottee with regard to suit property and as such he cannot be held entitled for possession or the suit property or mandatory injunction. So, issues no.1 and 2 are decided against the plaintiff and findings of the trial Court on these issues are reversed.
10. With regard to issue no.3, it is on record that wife of Jagir Singh is alive who is class one legal heir of Jagir Singh. Moreover no declaration of death of Jagir Singh has been taken by anybody under section 108 of Indian Evidence Act. In these circumstances, it can be said that the plaintiff is not competent to file the present suit and he has no locus standi. So, issues no.3 is decided in favour of the defendant and findings of the trial court on this issue are hereby reversed.
11. In view of my above discussion, the appeal stands allowed and the suit stands dismissed with no orders as to costs. Decree sheet be drawn accordingly. Trial Court record be returned and appeal file consigned to the record room.”
Saini Pushpinder 2014.05.30 13:29 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.330 of 2011 (O&M)
6
Not satisfied with the aforesaid judgement and decree of the Lower Appellate Court, the plaintiff has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:
(i) Whether Jasbir Singh defendant was not bound to hand over possession of the room out of the house in question which was temporarily given to him as alleged in the plaint?
(ii) Whether Jasbir Singh defendant had any right, title or interest in the house in question so as to continue occupying the house in question?
(iii) Whether Jaspal Singh plaintiff was not entitled to get possession of the house in question because he was also the co-allottee of the house in question along with Jagir Singh who is missing since 1999 and has to be presumed to be dead? (iv) Whether the learned ADJ, Chandigarh had mis-construed and mis-appreciated the evidence on record and all this has resulted in grave miscarriage of justice qua the plaintiff appellant? (v) Whether the learned ADJ, Chandigarh had given any acceptable reasons for setting aside the well reasoned and unassailable judgement of the learned Trial Court?"
Learned counsel for the appellant has vehemently argued that from the evidence on record, it is apparent that Jagir Singh and Jaspal Singh were jointly allotted the tenement in question and the same is duly proved from the passbook which was issued by the Chandigarh
Saini Pushpinder 2014.05.30 13:29 I attest to the accuracy and integrity of this document High Court Chandigarh
7
RSA No.330 of 2011 (O&M)
Administration at the time of allotment of this tenement wherein the appellant has been shown as co-allottee. However, the Lower Appellate Court while passing the impugned judgement and decree has erred and misconstrued the evidence on record.
The argument raised is without any merit and liable to be rejected. It could not be disputed before this Court that in the allotment letter Ex.P1 only Jagir Singh son of Kaka Singh has been shown to be allottee of the property in question and the appellant's name has not been mentioned in the same. The reliance of the trial Court on the testimony of PW5 Varinder Kumar, who has stated that along with Jagir Singh, Jaspal Singh, Balbir Kaur and Joginder Kaur were also co-allottees is not supported by the document of allotment itself. Since it was only Jagir Singh who was allotted the suit property, it cannot be said that the plaintiff appellant was a co-allottee. Admittedly, the defendant-respondent No.1 is in possession of the suit property and has a right to protect his possession against the whole world but not against the true owner. Since the appellant has failed to prove any right/title in the suit property, he has been rightly non-suited by the Lower Appellate Court.
No substantial question of law arises in this appeal.
Dismissed.
May 26, 2014 ps
(RAKESH KUMAR GARG) JUDGE
Saini Pushpinder 2014.05.30 13:29 I attest to the accuracy and integrity of this document High Court Chandigarh
3 issues framed by the court
Whether the plaintiff was a co-allottee of the suit property based on the allotment letter and passbook.
Whether the plaintiff had locus standi to file the suit for possession.
Whether the lower appellate court erred in reversing the trial court's decree by finding against the plaintiff.
Jaspal Singh
Jasbir Singh
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
