- (1.) Smt. Sowarn Dai, plaintiff has brought this regular second appeal against the judgment and decree dated 22.02.1985 passed by learned Additional District Judge, Gurdaspur whereby the appeal of Puran Chand , defendant had been accepted and the suit of the plaintiff- appellant had been dismissed.
(2.) Smt. Sowarn Dai had brought the suit for possession of a vacant site described by boundaries in head note of the plaint, situated in Mohalla Majman, Batala, shown in pink colour with letters 'ABCD' in Regular Second Appeal No.2217 of 1985 the site plan appended with the plaint after removal of the structure (Thara) constructed thereon illegally by the defendant. The case of Smt. Sowarn Dai is as under:- The vacant site was previously having pucca built double storeyed house bearing Khana Shamari no.2034 of the year 1917 and it belonged to Pandit Ram Rakha Mal son of Pandit Ganga Ram, resident of Mohalla Majman, Batala. Pandit Ram Rakha Mal was the father of Amar Nath, husband of the plaintiff and, therefore, father-in-law of the plaintiff. Ram Rakha Mal remained in possession of the said property as owner. After his death, Amar Nath, the husband of the plaintiff became its owner and had been in possession thereof. The house fell down being an old structure and, therefore, the property became a vacant site. The plaintiff started raising construction of walls towards West and South. There already existed joint wall of the plaintiff and the owner of the adjoining house towards north. When the construction of the walls was going on, the defendant illegally brought a suit for permanent injunction against the plaintiff in the court of learned Sub Judge, Batala on the allegations that he was in possession of the property and so he prayed for restraining the plaintiff from raising any construction. The court decreed the said suit and although the defendant was not in possession of the property in any capacity, he took advantage of the said judgment and decree and took possession of the same and constructed a Thara on the same. The plaintiff filed an appeal against the said Regular Second Appeal No.2217 of 1985 judgment. The appeal was accepted by Senior Sub Judge on 13.10.1975 and had dismissed the suit of the defendant. In the suit filed by the defendant, in the court of Sub Judge, Batala, he had alleged that the disputed property was evacuee property. He took this plea with a view to harm the poor plaintiff, who had no other person to help her. The allegation of the defendant in this regard was found to be baseless. Claiming that she is owner of the property in dispute, she has asserted that she is entitled to possession thereof. As the request of the plaintiff to deliver possession of the property in question to her, fell on the deaf ears of the defendant, she had brought the suit. The defendant had contested the suit by taking some preliminary objections. He questioned the locus standi of the plaintiff to file the suit. He has claimed that the court had no jurisdiction to try the present suit as the same is barred under the provisions of The Administration of Evacuee Property Act, 1950((hereinafter referred to as 'the Act') . The defendant claimed himself to be a tenant of the custodian over the suit property and that he regularly paid rent regarding the property in question. He has further alleged that he had purchased the site in dispute from the Rehabilitation Department/ Custodian on paying Rs.1500/- on 29.3.1982, In support of his claim of title to the suit property, he has set up sale certificate dated 29.3.1982 issued in his favour by the Custodian/Rehabilitation Department. Non-payment of some costs was also claimed to make the suit not maintainable. The suit Regular Second Appeal No.2217 of 1985 is also to be claimed bad for non-joinder of necessary parties. Custodian of the evacuee property is claimed to be necessary party to the suit. Lastly, claiming the market value of the suit property to be not less than Rs.4000/-, it is averred that the suit is not properly valued for the purpose of court fee and jurisdiction. In reply on merits, it is denied that there was a pucca double storeyed house bearing khana sumari no.2034 on the property in dispute and that it belonged to Pandit Ram Rakha Mal. The relationship of the plaintiff with Pandit Ram Rakha Mal is denied for want of knowledge. The property is also denied to be properly described in the plaint as well as in the site plan appended therewith. Ownership of Pandit Ram Rakha Mal over the disputed property is denied. The plea that the defendant was tenant over the property under the Custodian and the Government since 1965 and that he had purchased the same vide sale certificate dated 29.03.1982 is reiterated. It is claimed that in the suit brought by the defendant in the court of Sub Judge, Batala, the trial court decreed the suit but in appeal the discretionary relief of perpetual injunction was declined to him, as he was not proved to be owner of the disputed property. He has claimed that the plea he took in the previous suit was correct. Denying the plaintiff to be owner of the disputed property or that she is entitled to any relief, the suit was prayed to be dismissed.
(3.) Taking replication to the written statement, the following issues were framed by the trial court:- Regular Second Appeal No.2217 of 1985 "1- Whether the plaintiff has locus standi to file this suit ? OPP 2- Whether the court has no jurisdiction to try the present suit ?OPD 3- Whether the plaintiff is the owner of the suit property ?OPP 4- Whether the suit is not maintainable in view of the preliminary objection no.3 in the written statement ?OPD 5- Relief. Vide order dated 4.1.1984, the following additional issues were framed by the trial Court:- 4-A Whether the suit is not properly valued for the purpose of court-fee and jurisdiction ?OPD 4-B Whether the suit is bad for non-joinder of necessary parties ?OPD";