- (1.) The present appeal filed by the defendant arises from the concurrent findings recorded by the Court below, whereby the suit of the plaintiff/respondent for possession has been allowed. The plaintiffs had filed the suit for the relief of possession directing the defendants to remove their wooden kiosk and malba and the counter being used for running a tea stall over the property of plaintiff shown in colour detailed in the title of the suit plaint and directing the defendants to pay the plaintiffs the damages for use and occupation of the said land, after holding inquiry to the mesne profits as per Order 20 Rule 12 of C.P.C. from the date of illegal occupation i.e. 01.12.1991 till the date of delivery.
(2.) The case of the plaintiff is that it was a registered trust and Sh. Lalit Mohan Goyal or Brij Bhushan any of the trustee was authorized to file the suit vide a meeting dated 19.01.1995 and the suit was filed by Sh. Lalit Mohan Goyal. It is alleged that the plaintiffs trust was the owner of the Dharamshala known as Dharamshala Bhagwan Dass Devki Nandan situated opposite Railway Station, Ferozepur Cantt, which is meant for providing facilities to the persons visiting from outside. This Dharamshala has two doors. One of the door leads to Temple and rooms constructed and other door is on the corner of Dharamshala which leads to vacant site of Dharamshala along with boundary wall of Northern Railway Divisional, Hospital, Ferozepur. It is alleged that in front of the second door, the defendants have placed the wooden kiosk and counter for running the business of tea stall and were totally blocking the passage leading to the vacant site of the Dharamshala and due to the blockage caused it was impossible for the officials of the Dharamshala to approach the site of the vacant area. The land in possession of the defendants was measuring 18'-3" x 14'-3". It is further alleged that the water coming from the Dharamshala collected in the pits behind the kiosk and there was no approach left by the defendants to those pits, which was close to the adjoining the Northern Railway Division Hospital. Besides this, huge bushes had grown which provided shelter to deadly insects. The defendants were in authorized occupation of site since December, 1991 and had also got an electricity connection there. The plaintiff through his trustee had requested the defendants to remove the construction but they were not agreeing and they were in illegal occupation since December 01, 1991. Thus, they were entitled for the mesne profit from said defendant. It is alleged that earlier Ramesh Kumar had filed a suit for permanent injunction against the trust wherein possession over the plot was shown in red colour where wooden kiosk measuring 8' x 7'-6" was placed for running the business. In the said suit, the trust undertook to take possession after due process of law and the defendants removed the second door of the Dharamshala in the first week of January, 1995 and bricked the said portion of wall in order to destroy the evidence of entry gate on back side of the wooden kiosk and Brij Mohan, one of the trustee gave application to the police and on their intervention, the said gate was re-affixed. Accordingly, the present suit was filed thereafter. In the written statement filed by the defendants/appellants the competency of Sh. Lalit Mohan was challenged on the ground that he is neither trustee nor the trust was registered. It is alleged that vide order dated 21.04.1994, the earlier suit was dismissed so, therefore, the present suit was barred under Order 2 Rule 2 C.P.C. since in the earlier suit, the decree for mandatory injunction for removal of wooden kiosk was sought and no relief of possession was sought. The site plan attached with the plaint was alleged to be wrong and defendant Nos.1 and 2 were neither occupiers of wooden kiosk nor in possession rather they had been impleaded just to harass them. The court fees on the suit filed was also less. It was also alleged on merits that the vacant land shown to be the land of the Dharamshala and that Ramesh Kumar had placed his wooden kiosk measuring 8' x 5" on a total area of plot measuring 15' -3" on southern side, 18'-6" on the northern side 14' on the eastern side and 16'-6" on the western side and is there since 1986. It was denied that wooden kiosks were placed in the year 1991. It is alleged that now it had come to their knowledge that the plaintiff was not the owner of the property and the gate had been opened by the plaintiff with the help of the police and in fact the kiosk was kept with the consent of the the plaintiff. It is denied that sullage water of drain comes from Dharamshala within the Dharamshala and collected in the pits. It is further alleged that in case the owner was found to be the trust then they were entitled to get rent at the rate of Rs.120/-as agreed to and got by the plaintiff from defendant Ramesh Kumar till November, 1993. On the said pleadings, the following issues were framed: 1. Whether the plaintiff is a registered trust and Lalit Mohan Goyal is competent to file the present suit? OPP 2. Whether the plaintiff trust is owner of the property in dispute and entitled to possession thereof? OPP 3. Whether the plaintiff is entitled to damage or use and occupation of the disputed property by the defendants, if so at what rate and to what amount? OPP 4. Whether this suit is barred by principle of resjudicata? OPD 5. Whether the suit is barred under Order 2, Rule 2 CPC? OPD 6. Whether the site plan of the property in dispute filed with the plaint is wrong? If so what is the correct site plan thereof? OPD 7. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? If so how much is deficient? OPD 8. Whether the suit is bad for mis-joinder of the parties? OPD 9. Whether the defendants are entitled to special costs under Section 35-A CPC? OPD 10. Relief.
(3.) The Courts below came to the conclusion that in the earlier litigation and in the plaint filed by defendant Ramesh Kumar, he himself stated that Sh. Lalit Mohan Goyal, is the trustee of the Dharamshala and, therefore, he was held competent to file the present suit. The learned trial Court noticed that on the issue of resjudicata no judgment of any Court had been placed on the file, through which the controversy between parties had been finally decided on merits and benefit was being taken of order dated 21.04.1994 which was one litigation, dismissed under Order 9 rule 2 CPC. It was held accordingly that as per the proviso of said order the said suit could be filed and the present suit having been filed on 23.01.1995 and registered on 24.01.1995 was maintainable and, therefore, it could not be held to be barred by the principle of resjudicata. On the issue accordingly it was also noticed that the earlier suit was for mandatory injunction for removal of kiosk whereas the present is also for possession after removal of the kiosk and thus bar of Order 2 Rule 2 CPC was not attracted. The earlier litigation by Ramesh Kumar was taken into consideration in which he admitted that the site where he placed khokha is owned by the defendant and Sh. Lalit Mohan Goyal is the managing trustee and the site plan with the plaint is Ex.D2 and the said case was withdrawn on 13.12.1994 as per order Ex.D3. The defendant in their earlier litigation had admitted that the plaintiffs were the owners of the suit property, therefore, they cannot turn around and say that the Dharamshala is not the owner of the plot rather in his cross examination stated that the property could be of railway or Dharamshala. Accordingly, it was held that the plaintiff was the owner. On the question of damages, it was noticed that the defendants had filed the complaint on 06.01.1995 (EX.D-5) wherein he has alleged having taken on rent these premises at the rate of Rs.170/-per month, though in the written statement, he alleged the rate of Rs.120/-per month. So accordingly, the mesne profit was assessed at Rs.120/-per month, and accordingly, the suit was decreed for possession and the defendants were directed to remove the wooden kiosk and malba and pay Rs.120/-per month for use of the said land from the date of the suit till actual delivery of possession.;