HIGH COURT OF PUNJAB AND HARYANA
MOHINDER KAUR AND ORS – Appellant
Versus
MOHINDER SINGH AND ORS – Respondent
RSA 3279/2013
R.S.A. No. 3279 of 2013 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB & HARYANA,
CHANDIGARH
R.S.A. No.3279 of 2013
Date of decision:-23.08.2013
Mohinder Kaur and ors.
....... Appellants
Versus
Mohinder Singh and ors.
........ Respondents
CORAM:HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present:
Mr.Kartik Gupta, Advocate
for the appellants.
****
Vijender Singh Malik, J.
This is a Regular Second Appeal brought by the
plaintiffs, who have lost before both the courts below by way of
judgment and decree dated 14.03.2013 passed by learned
Additional Civil Judge (Senior Division), Hoshiarpur and judgment
and decree dated 05.08.2013 passed by learned Additional District
Judge, Hoshiarpur.
A suit was brought by the plaintiffs for separate
possession of 5 marlas 1 sarsahi land out of 2 kanals 11 marlas of
land excluding super structure standing thereon comprised in
khewat No.1065, khatauni No.1265 and khasra no.105/1(2-5),
Kumar Dinesh
2013.08.29 13:02
I attest to the accuracy and
integrity of this document
High Court,Chandigarh
R.S.A. No. 3279 of 2013 (O&M)
-2-
105/2(0-6) situated in revenue estate of village Premgarh, Tehsil
and District Hoshiarpur as per jamabandi for the year 2006-07, now
falling within the municipal limits of Hoshiarpur whereupon
building of New Raj Theatre exists and for permanent injunction
restraining the defendants from taking possession of the suit
property from the plaintiffs till it is partitioned by metes and
bounds. The case of the plaintiffs is as under:-
The defendants alongwith one Gurnam Kaur had been
joint owners of the property in question. It was earlier on lease
with Kesho Ram and others, who had constructed building over it.
Surinder Pal Singh, predecessor in interest of the plaintiff
purchased super structure and machinery lying on disputed
property in the shape of theatre named New Raj Theatre,
Hoshiarpur. Surinder Pal Singh also purchased land measuring 5
marlas 1 sarsahi from Gurnam Kaur vide sale deed dated
19.08.1998. The defendants filed an application for ejectment
against their tenants. The said application was allowed. Neither the
plaintiffs nor their predecessor in interest was party to the said
ejectment proceedings. The defendants started executing order of
ejectment in the court. The plaintiffs filed objection petition in the
said proceedings claiming that they are not bound by the ejectment
order. The objection petition was dismissed on 05.11.2009. The
Kumar Dinesh
2013.08.29 13:02
I attest to the accuracy and
integrity of this document
High Court,Chandigarh
R.S.A. No. 3279 of 2013 (O&M)
-3-
plaintiffs then preferred an appeal against the said order, which
could not succeed, though plaintiffs were held to be co-owner in
the land underneath the building of the cinema. The appeal
preferred by the plaintiffs upto Hon'ble Supreme Court of India
met with the same fate. In order to bring an end to disputes with the
defendants, the plaintiffs have filed present suit for partition of
disputed property excluding super structure standing thereon.
The suit has been resisted by the defendants. They have
claimed that super structure and machinery over disputed land was
installed by Kesho Ram and others, who were tenants therein. It is
further claimed that those tenants were ordered to be ejected from
the suit land and were directed to remove all the building material
and machinery lying therein. The plaintiffs managed to take illegal
possession of entire building, after passing of ejectment order.
They are bound by the order passed on 28.02.1987. They have
admitted that Gurnam Kaur, co-sharer in disputed land, sold land
measuring 5 marlas vide sale deed dated 19.08.1998. It is denied
that she had delivered possession of land to the plaintiffs because
she herself was not in possession of any portion of the disputed
land. It is further averred that the plaintiffs are b