Kiran @ Mandeep Kaur vs Tejinder Kaur and another

L.N. Mittal, J.—By this common judgment, I am disposing of two appeals i.e. R. S. A. No. 1010 of 2012 and R. S. A. No. 1011 of 2012 -both titled Kiran @ Mandeep Kaur vs. Tejinder Kaur and another because both these appeals have arisen out of a single suit. Both these appeals have been filed by defendant No. 1.

Suit was filed by respondent No. 1-plaintiff Tejinder Kaur against appellant-defendant No. 1 and against proforma respondent No. 2 Kirpal Kaur as defendant No. 2. This is unfortunate litigation among family members. Plaintiff and defendant No. 1 are both daughters-in-law of Kirpal Kaur. Plaintiff''s case is that she is owner of the entire suit house having purchased it from her father-in-law Jaswant Singh i.e. also father-in-law of defendant No. 1 and husband of defendant No. 2, vide registered sale deed dated 21.10.1997. Suit house was self acquired property of Jaswant Singh, who had purchased it vide sale deed dated 16.05.1966. Defendants have no right, title or interest in the suit property. They are licensees of suit portion of the house depicted in red colour in the site plan. Their license has been revoked. However, they failed to vacate the suit portion and to pay use and occupation charges for the same. Accordingly, plaintiff sought possession of the suit portion and also claimed recovery of Rs. 36,000/- as use and occupation charges for three years @ Rs. 1,000/- per month along with interest thereon @ 12% per annum, amounting to Rs. 12,960/- till filing of the suit.

Defendants No. 1 and 2, in their separate but somewhat similar written statements, controverted the claim of the plaintiff. It was alleged that suit property is joint Hindu family property and is jointly possessed by all the members of the family. Jaswant Singh, his both sons Satnam Singh and Rajinder Singh and wife Kirpal Kaur have been in possession of the suit property for the last so many years. Husband of defendant No. 1 also contributed from his own resources towards joint family funds. Plot under the suit house was purchased from joint family funds in the name of Jaswant Singh karta. House was constructed later on by husband of defendant No. 1 from his own funds. Satnam Singh - husband of defendant No. 1 has filed Civil Suit challenging the sale deed in favour of the plaintiff. Accordingly, the instant suit was liable to be stayed under 10 of the CPC (in short - CPC). It was, however, admitted that defendants are residing in portions of the suit house. It was pleaded that no portion of the house is in possession of the plaintiff. It was also alleged that whereabouts of Jaswant Singh are not known since the registration of the alleged sale deed, which might be result of fraud, coercion etc.

Learned Civil Judge (Junior Division), Ludhiana, vide judgment and decree dated 26.09.2009, decreed the plaintiff''s suit for possession of the suit portion, but dismissed the suit regarding recovery of use and occupation charges and interest. Both - plaintiff and defendant No. 1 preferred separate first appeals against judgment and decree of the trial court. Learned Additional District Judge, Ludhiana, vide common judgment and decrees dated 18.10.2011, dismissed the appeal preferred by defendant No. 1 and allowed the appeal preferred by plaintiff and also granted decree for recovery of Rs. 48,960/- , as claimed by the plaintiff, along with possession of the suit portion. Feeling aggrieved, defendant No. 1 has filed these two second appeals because there were two first appeals.

I have heard learned counsel for the appellant and perused the case files.

Sale deed by Jaswant Singh in favour of plaintiff was assailed on the ground that the suit property was joint Hindu family property. However, defendant No. 1-appellant, appearing in the witness-box, herself admitted that it was self-acquired property of Jaswant Singh. Consequently, this ground was not pressed either before the lower appellate court or before me.

Counsel for the appellant contended that the instant suit of the plaintiff was liable to be stayed u/s 10 CPC on account of suit filed by Satnam Singh - husband of defendant No. 1-appellant. The contention cannot be accepted. The instant suit has already been decided and even first appeals have also been decided. Counsel for the appellant submitted that even suit filed by Satnam Singh has also been dismissed by the trial court vide judgment and decree dated 17.08.2011, but first appeal against the same is still pending. However, on this ground, the instant suit or instant second appeal cannot be stayed. More so, because Satnam Singh was not even party to the instant suit.

There is concurrent finding recorded by both the courts below in favour of the plaintiff. The said finding is fully justified by the evidence on record and is not shown to be perverse or illegal or based on misappreciation or misreading of evidence, which may call for interference in second appeal. On the other hand, sale deed in favour of plaintiff has been duly proved and ground to challenge the same, that suit property was joint family property, has not been proved and pressed. Consequently, there was no option, but to decree the suit of the plaintiff. Therefore, no question of law, much less substantial question of law, arises for adjudication in these second appeals. Both these appeals are meritless and accordingly both these appeals are dismissed in limine. However, it is expressly made clear that nothing in this judgment shall have any bearing on the is, which was filed by Satnam Singh because he is not party to the present is.

Counsel for the appellant prayed that some time may be granted to the defendants for vacating the suit property. The prayer is genuine and is allowed. Plaintiff shall not be entitled to execute the decree for a period of six months from today, subject to the condition that both the defendants shall furnish undertaking by way of affidavit before the trial court/Executing Court undertaking to vacate the suit portion and to hand over peaceful possession thereof to the plaintiff on or before expiry of six months from today and also undertaking to pay use and occupation charges @ Rs. 1,000/- per month.