R.S.A. No. 3279 of 2013 (O&M)

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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)

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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)

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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