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IN THE HIGH COURT OF PUNJAB AND HARYANA
Rekha Mittal, J.
Dilbagh Singh – Appellant
Vs.
Gurbax Singh – Respondent
RSA No. 5695 of 2017 (O&M)
Decided On : 03-07-2018
(i) In absence of specific denial in the written statement, fact regarding title is to be taken as admitted;
(ii) However, proviso to Order VIII Rule 5 lays down that the court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission;
(iii) In the same manner, proviso to Section 58 of the Evidence Act also lays down that court may in its discretion require the facts admitted to be proved otherwise than by such admissions even though as per Section 58 of the Evidence Act, admitted facts need not be proved under certain circumstances – Evidence Act,1872, S.58.
(B) Specific Relief Act, 1963, S.37 – Injunction – Suit for possession – Question of Title – Specific Denial – Appellant has not claimed any title to himself or to a third party qua the suit house – It is also admitted position that before the appellant came in possession of the suit house, the same was in possession of the respondent and his family – The appellant did not contest plea of the respondent with regard to his being owner of the suit house either by denying those allegations specifically or by necessary implication rather admitted the respondent to be owner of the suit house in view of the terms and conditions of alleged compromise, relied upon by the appellant, a copy whereof is marked as the document has been sought to be relied upon by the appellant, as the document has been sought to be relied upon by the appellant, he is bound by any such admission even though he has failed to prove the same, in accordance with law – Suit dismissed. (Para 14)
Rekha Mittal, J.
The present appeal directs challenge against consistent findings recorded by the Courts whereby suit filed by the respondent-plaintiff for possession of house situated in the area of Patti Mustugi village Verpal, Tehsil and District, Amritsar and for mesne profits was partly decreed by the trial court and judgment and decree passed by the trial court came to be affirmed by the first appellate court.
2. In short, case of the respondent-plaintiff is that the suit property is owned by him, entire construction was raised by him and electricity connection has been installed in the name of his father namely Tara Singh. Earlier, the respondent along with his family had been residing in the suit property. Recently he shifted to village Tur. The suit property was under his lock and key and some of his belongings like Television, fridge, two almirahs, one iron peti and utensils were lying in the suit property. On 9.7.2007, the respondent came to village Verpal to meet his brother Harjinder Singh who resides in a house adjoining the suit property. At about 8-00 p.m., the appellant alongwith his associates namely Jasbir Kaur, Sonu, Disha, Gurpreet Singh, Bukhi, Jagdish Kumar and others armed with deadly weapons came there and forcibly entered the suit house. They broke open the locks and took illegal possession of articles lying in the suit property. When the respondent and his brother tried to stop them, they attempted to kill him and gave beatings. At gun point, they extorted a sum of Rs. 15,000/- from his pocket. The matter was reported to the police who in place of taking action against the defendant/appellant and his associates detained the respondent illegally and forcibly. The appellant and his associates got his thumb impressions on some blank papers in connivance with ASI Ravinder Singh, the then Incharge Police Post, Verpal at gun point. The respondent filed a suit for mandatory injunction for recovering possession of his property along with other articles and to pay mesne profits but the suit was decided by the Court at Amritsar with the observations that the suit is not legally maintainable and the respondent should have filed a suit for possession by affixing proper court fee. Hence, the present suit.
3. The appellant/defendant filed the written statement and raised preliminary objections inter alia that the suit is not legally maintainable; the respondent has no locus standi to file the suit; the respondent is estopped by his act and conduct from filing the suit; the suit is bad for misjoinder and non-joinder of parties; the respondent has concealed the true and material facts from the court; the plaint is liable to be rejected under Order 7, Rule 11 of the Code of Civil Procedure (in short "CPC") as it is without any cause of action and has not been signed and verified as per provisions of amended CPC and the suit is barred by the principle of res judicata. However, it has been averred that the respondent and his family extracted Rs. 5,50,000/- from the appellant on false assurance to send his son abroad. When he failed to fulfill his promise, the matter was compromised and as per the compromise, the respondent delivered possession of suit property to appellant with promise to pay back Rs. 5,50,000/- and thereafter to take back possession of suit house. The allegations with regard to the appellant having recovered possession of suit property forcibly on 9.7.2007, have been specifically denied with a prayer for dismissal of the suit.
4. The respondent filed replication reiterating the averments raised in the plaint and controverted defence plea that either the respondent had taken an amount of Rs. 5,50,000/- for sending son of the appellant abroad or possession of suit house was delivered to the appellant on the basis of alleged compromise effected between the parties.
5. The trial court framed the following issues for determination:-
1. Whether the suit of the plaintiff is bad for mis-joinder and nonjoi
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