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Kunj Lal and ors. Vs. Bhagwan Das Jugal Kishore - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 53 of 1949
Judge
Reported inAIR1953P& H220
ActsLimitation Act, 1908 - Schedule - Article 144; Code of Civil Procedure (CPC) , 1908 - Order 20, Rule 4
AppellantKunj Lal and ors.
RespondentBhagwan Das Jugal Kishore
Appellant Advocate P.C. Pandit and; D.N. Awasthy, Advs.
Respondent Advocate K.C. Nayar, Adv.
DispositionAppeal dismissed
Cases ReferredEshanchunder Singh v. Shamachurn
Excerpt:
.....any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - clearly, there is abundant evidence on the record to show that the site of the house in suit was purchased by debi das on 28-11-1893, by sale deed, ex. issues are framed on the case disclosed in the pleadings and evidence is directed at the trial to the proof of the case so set up and covered by the issues fixed on the pleadings of the parties, clearly, no decision can be given on a case which is not to be found in the pleadings or involved in or consistent with the case made in the pleadings......j.1. on 21-1-1948, bhagwan das instituted civil suit no. 9 of 1948 for the possession of the house in suit. 2. in para. 1 of the plaint it is stated that debi das, grandfather of the plaintiff, purchased the site on which the house stood, from ramun & kura sons of makhan, caste rajput & that jugal kishore, father of the plaintiff, constructed the house in 1938 after having obtained the sanction of the municipal committee, bhiwani. 3. in para. 3 of the plaint it is stated that the defendants are distant collaterals of the plaintiff and after the house was constructed the defendants took southern portion of the house 'gratis' for residence while in the northern portion of the house the plaintiff placed his goods and locked that portion. 4. in para. 5 of the plaint it is stated that.....
Judgment:

Harnam Singh, J.

1. On 21-1-1948, Bhagwan Das instituted Civil Suit NO. 9 of 1948 for the possession of the house in suit.

2. In para. 1 of the plaint it is stated that Debi Das, grandfather of the plaintiff, purchased the site on which the house stood, from Ramun & Kura sons of Makhan, caste Rajput & that Jugal Kishore, father of the plaintiff, constructed the house in 1938 after having obtained the sanction of the Municipal Committee, Bhiwani.

3. In para. 3 of the plaint it is stated that the defendants are distant collaterals of the plaintiff and after the house was constructed the defendants took southern portion of the house 'gratis' for residence while in the northern portion of the house the plaintiff placed his goods and locked that portion.

4. In para. 5 of the plaint it is stated that Jugal Kishore dying in 1945 the defendants took forcible possession of the northern portion of the house locked by the plaintiff.

5. Defendants resisted the suit pleading 'inter alia' that the site of the house was not purchased by Debi Das and that Jugal Kishore did not construct the house. Indeed, defendants pleaded that plaintiff was not the owner of the house in suit.

6. In his statement before the fixation of issues, Kunj Lal defendant stated that Jugal Kishore had applied to the Municipal Committee for sanction to build the house and part of the account of the building was kept. In that statement Kunj Lal admitted that Bhagwan Das plaintiff had a share in the site on which the house in suit was built.

7. On the pleadings of the parties the following issues were fixed:

1. Is the plaintiff owner of the property?

2. Are the defendants in adverse possession for over 12 years?

3. Relief.

8. In decreeing the suit with costs the Court found for the plaintiff on issue 1 and found against the defendants on issue 2.

9. From the decree passed in Civil Suit No. 9 of 1948 defendants appeal.

10. In these proceedings the finding given by the court on issue 2 is not challenged.

11. Mr. Prem Chand Pandit appearing for the defendants-appellants challenges the correctness of the decision given by the Court on issue 1.

12. As stated above Kunj Lal admitted before the fixation of issues that Jugal Kishore had applied to the Municipal Committee for sanction to build and that plaintiff had a share in the site on which the house in suit was built. In the evidence given by him Kunj Lal stated that the site on which the house stood belonged to the Rajputs and Debi Das had purchased that site though he could not say if the Rajputs executed a sale deed. Sale deed, Ex. p-2, shows that Debi Das son of Sukhan had purchased the site from Kura, Ramun and Khubi sons of Makhan for Rs. 60/- on 28-11-1893. On 21-4-1895, Kura son of Makhan by mortgage-deed, Ex. P-5, mortgaged his proprietary dues in the site with Debi Das for Rs. 10/-. On 11-7-1895, Khubi son of Makhan by mortgage-deed, Ex. P-4, mortgaged his proprietary dues in the site with Debi Das for Rs. 10/-.

13. In the Court of first instance oral evidence was examined but no reliance can be placed upon that evidence about the acquisition of the site' in suit. Clearly, there is abundant evidence on the record to show that the site of the house in suit was purchased by Debi Das on 28-11-1893, by sale deed, Ex. P-2.

14. Finding as I do that Debi Das purchased the site of the house in suit, it follows that Bhagwan Das, grandson of Debi Das, is the owner of the house built on that site. In such cases the rule is that the house must be held to be absolute property of the party who holds the soil on which it is built 'Omne quod solo inaedificatur solo cedit'. In this connection Jurisprudence by Sir John Salmond Tenth Edition page 429 may be seen.

15. In an earlier part of this judgment I have mentioned that Jugal Kishore obtained the sanction from the Municipal Committee, Bhiwani, to build the house. Receipts, Exs. P-13, P-14, P-15, P-16 and P-44, show that Jugal Kishore paid water tax to the Municipal Committee for the house in suit. Receipts, Exs. P-17 and P-I8, show that Bhagwan Das plaintiff paid water tax to the Municipal Committee for the house in suit. In these circumstances, the evidence given by Nathu Rani D. W. 1, Dina Nath D. W. 5 and Kunj Lal D. W. 6 has no value. Kunj Lal stated before the fixation of issues that part of the account of the building was Kept but no accounts were produced at the trial.

16. Basing himself on the agreement, Ex. D-I, Mr. Prem Chand Pandit points out that on 6-5-1945, Bhagwan Das plaintiff agreed to purchase the house in suit for Rs. 3,700/-. In evidence Bhagwan Das admitted his signatures on the agreement, Ex. D-l, but stated that he had put his signatures on a blank paper. Nathu Ram D. W. 1, Ganeshi Lal D. W. 2, and Lakhpat Rai D. W. 3 gave evidence that they gave the award that Bhagwan Das should pay Rs. 3,700/- and purchase the house in suit from Kunj Lal.

17. Kunj Lal D. W. 6 admitted that the dispute with respect to the house was not referred to the arbitration of Nathu Ram, Karori Lal, Lakhpat Rai, Ganeshi Lal and Matu Bam by any writing, No award given by the arbitrators has been produced on the record. In the circumstances, agreement, Ex. D-l, does not establish that any binding award was given by the arbitrators.

18. In the written statement defendants did not plead that plaintiff was not to be given possession of the house except on payment of Rs. 3,700/-, and the point was not put in issue. That being so the argument raised that Bhagwan Das should not be given possession of the house in suit except on payment of Rs. 3,700/- cannot be considered. Issues are framed on the case disclosed In the pleadings and evidence is directed at the trial to the proof of the case so set up and covered by the issues fixed on the pleadings of the parties, Clearly, no decision can be given on a case which is not to be found in the pleadings or involved in or consistent with the case made in the pleadings. For authority on this point - 'Eshanchunder Singh v. Shamachurn', 11 Moo. Ind. App. 7 (PC) (A) may be seen.

19. No other point arises in these proceedings. In the result I would dismiss with costs Regular First Appeal No. 53 of 1949.

Kapur, J.

20. I agree.


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