Gurmit Kaur and Another vs Baljinder Kaur and Others

T.P.S. Mann, J.—The suit for joint possession filed by the plaintiffs-respondents has been decreed by both the Courts below. Aggrieved of the same, the defendants have filed the present second appeal u/s 100 of the Code of Civil Procedure. According to the plaintiffs, their father Gurdial Singh was owner in possession of the suit property, consisting of a residential house, situated in the abadi of village Khawaspur. After the death of his wife Joginder Kaur, Gurdial Singh got re-married to defendant Gurmit Kaur and from the said wedlock, defendant Sandip Kaur was born. Gurdial Singh died on 24.4.2006. The suit property which was being used as a residential house by Gurdial Singh, thus, came to be jointly owned by the plaintiffs and the defendants. However, in the absence of the plaintiffs, the defendants forcibly and illegally occupied the entire suit property.

In the written statement, it was pleaded that defendant Gurmit Kaur had purchased the suit property from one Jasbir Kaur wife of Kirpal Singh on the basis of an agreement to sell and came in possession of the same. Therefore, the plaintiffs had no cause of action to file the suit.

Both the Courts below have held that defendant-Gurmit Kaur had been staying in the residential house in question even prior to the death of Gurdial Singh, which house was owned by Gurdial Singh. The agreement to sell Ex. D1 was a fabricated document. Accordingly, the plaintiffs, who were two daughters of Gurdial Singh from his first wife had 1/4th share each in the house in question, which they had inherited after the death of their father Gurdial Singh. Accordingly, the suit for declaration was decreed and the plaintiffs were held entitled for joint possession.

Alongwith the appeal, the defendants have also filed a misc. application under Order XLI Rule 27 of the CPC for permitting them to produce copy of the civil suit preferred by appellant Gurmit Kaur against Balbir Singh and others and the written statement filed thereto by way of additional evidence. In the said civil suit, copy of which has been appended as Annexure A-1, appellant-Gurmit Kaur has sought joint possession of 1/7th share by metes and bounds in respect of a house/Haveli, measuring 250 x 45 feet, situated in the abadi of village Khawaspur. It has been pleaded in the said suit that the house in question therein was jointly owned by Gurdial Singh husband of Gurmit Kaur appellant, alongwith his four brothers, sister and mother, it being the ancestral property, whereas the property in dispute in the present suit, was not owned by Gurdial Singh, rather it was owned by appellant-Gurmit Kaur, who had purchased it from Jasbir Kaur. Therefore, the plaintiffs can seek their share in the joint house/Haveli and not in the property owned by Gurmit Kaur.

Merely because appellant-Gurmit Kaur has filed another suit claiming 1/7th share in the house/Haveli is not sufficient to hold that her husband Gurdial Singh did not own the house in question in the present suit and the ancestral property in which he had any share, was the house/Haveli which was subject matter of the suit filed by appellant-Gurmit Kaur. As such, the plaint Annexure A-1 and written statement Annexure A-2 have no relevance to the facts and circumstances of the present appeal, which has emanated from the suit filed by the respondents. Even otherwise, the defendants did not take any plea in respect of the suit filed by appellant Gurmit Kaur against Balbir Singh and others when the present suit filed by the respondents was pending before the trial Court or even during the pendency of the first appeal preferred by the appellants. Hence, there is no merit in the application filed under Order XLI Rule 27 of the Code of Civil Procedure.

Learned counsel for the appellants has submitted that the suit property was earlier owned by one Jasbir Kaur, who on 25.6.2004 sold the same to defendant Gurmit Kaur. Therefore, the plaintiffs were not entitled to seek joint possession of the same.

Admittedly, the agreement to sell Ex. D1 is an un-registered document. It pertains to the property, the value of which is more than Rs. 100/-. As it was mentioned in the agreement Ex. D1 that the possession of the property had been delivered, it required registration. The same being not the case, the agreement Ex. D1 cannot be read in evidence. Apparently, the agreement, which is not even on the stamp paper, has been created by defendant-Gurmit Kaur so as to assert that she, alongwith her daughter Sandip Kaur, owns the suit property and the plaintiffs had no right in these same. On the other hand, the suit property was owned by Gurdial Singh and after his death, the plaintiffs and the defendants have become owners of the same to the extent of 1/4th share each.

The findings arrived at by the Courts below are based on proper appreciation of evidence available on the record. No material is available on the file to come to a contrary conclusion than the one arrived at by the Courts below.

None of the substantial questions of law, as claimed by the appellants, arises for determination. In view of the above, there is no merit in the appeal and also the application under Order XLI Rule 27 of the Code of Civil Procedure, which are, accordingly, dismissed.