R.S.A No. 3254 of 2010 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

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R.S.A No. 3254 of 2010 (O&M)

Date of decision:- 15.9.2010

Jagdish Singh & Ors.

... Appellants

Versus

Ishwar Kaur

... Respondent

CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH

Present:- Mr. S.K.Pipat, Sr. Advocate, with

Mr. M.K.Pundir, Advocate, for the appellant.

Gurdev Singh, J (oral)

This is second appeal preferred by the defendants/appellants –

Jagdish Singh, Surinder Kumar and Devinder Singh against the judgment

and decree dated 20.5.2010 passed by District Judge, SAS Nagar, Mohali,

vide which he dismissed the appeals preferred by the parties against the

judgment and decree dated 19.11.2009 passed by Additional Civil Judge

(Sr. Division), SAS Nagar, Mohali, vide which he decreed the suit of

plaintiff/respondent – Ishwar Kaur for the recovery of possession of the

property in dispute consisting of Kothi No. 456 situated in Phase – X,

Mohali and for the recovery of Rs.3000/- per month as damages w.e.f

30.11.1996 till the delivery of possession while dismissing her suit for the

other relief claimed in the plaint.

The suit was filed by the plaintiff for the recovery of possession

of the house in dispute and the damages for unauthorised possession thereof

by the defendants @ Rs.5000/- per month and for the recovery of Rs.6 lakhs

R.S.A No. 3254 of 2010 (O&M)

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as damages for the mental agony, harassment and inconvenience suffered by

her on account of the unauthorised possession of the defendants and for

dragging her in various kinds of litigation. She pleaded in the plaint that

her husband Bhagwan Singh was the owner in possession of the house,

who expired on 25.2.1998. During his life time he executed a valid Will

dated 23.6.1987 in her favour and it was only after his death that she

completed the construction of this house. In her absence, the defendants

tress passed into the house and occupied the same regarding which she

lodged FIR No. 185 dated 18.12.1996 in Police Station Phase VIII, Mohali.

This house can fetch a rent of Rs.5000/- per month. As the same is being

unauthorisedly used by the defendants, so they are liable to pay damages for

their unauthorised possession, at that rate.

The suit was contested by the defendants. In their written

statement they controverted the claim of the plaintiff and came out with the

plea that Bhagwan Singh left behind Kuldeep Singh as one of the co-sharer

and a division took place amongst all the legal heirs and the house in

dispute fell to the share of that Kuldeep Singh and it was he who

constructed the house. Jagdish Singh – defendant No.1 is the power of

attorney of that Kuldeep Singh. The Will put forward by the plaintiff is

forged and it has already been decided, in the previous litigation, that no

such Will was ever executed by Bhagwan Singh, in favour of the plaintiff.

On the pleadings of the parties following issues were framed by

the trial Court:-

1. Whether the plaintiff is entitled for possession of Kothi No.

456, Phase X, SAS Nagar Mohali.

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2. Whether the plaintiff is entitled for recovery of Rs.1,00,000/- as

damages for unauthorised use and occupation of the house by

the defendants @ Rs. 5000/- per month and for recovery of

Rs.6 lacs for having caused mental torture, agony, harassment

and inconvenience to the plantiff by the defendants by

unauthorizedly occupying the house No.456, Phase X, SAS

Nagar (Mohali), and for dragging her in various kind of

litigation and for directing the defendants to pay Rs.56,000/-

per month as damages from the date of filing the suit till the

delivery of the house? OPP

3. Whether the suit is pre mature and is not maintainable in the

present form? OPD

4. Whether the suit is barred by the principle of resjudicata?OPD

5. Whether the suit is barred under order 7 rule 1 CPC?OPD

6. Whether the suit is bad for non joinder of the necessary parties?

OPD

7.