Harish Chand Duggal and Others vs Waryam Singh and Others

Rakesh Kumar Garg, J.—Suit for declaration was filed by the appellants by pleading that their father was in possession over the shop in question and running the same being Halwai. Plaintiff/appellants used to assist their father to run the shop for last 25 years. No portion of the shop was in possession of respondent No. 1. Respondent No. 1 is running the shop of Halwai alongwith his brother on the northern side of the shop of appellant/plaintiffs which is adjoining to the shop of appellants. After demolishing the shops Improvement Trust, Ambala constructed new shops. As per rules shops were to be allotted to the shopkeepers already in possession of their shops in the said area, respondent No. 1 was wrongly allotted the shop by respondent No. 2, which was in possession of respondent No. 1. Upon notice separate written statements were filed by both the defendants. It was pleaded by respondent No. 2 that suit was not maintainable as statutory notice was not served upon it. Also, it was pleaded by both the defendants that new shops were constructed in scheme No. 9 and those shops were allotted to the persons who were already occupying the old shops and paying rent to Municipality. There was no privity of contract between plaintiffs and respondent No. 2.

After going through the records and evidence, trial Court vide judgment and decree dated 10.12.82 decreed the suit of plaintiff. It was observed that respondent No. 1 was stranger and he was having no right to own the shop in question.

Feeling aggrieved, respondent No. 1 filed appeal and vide judgment and decree dated 17.01.1985, first Appellate Court accepted the appeal and findings returned by the trial Court were set aside. It was observed that respondent No. 1 was one of the occupants of the land used by Trust to construct the new shops under its scheme, there was no illegality on the part of the Trust to allot one shop to respondent No. 1.

Aggrieved from the judgment and decree of the lower Appellate Court, plaintiffs have filed the instant appeal.

The appellants framed the following substantial question of law for consideration of this Court:-

Whether respondent No. 1 was justifying in allotting the shop to respondent No. 2?

Admittedly, after the demolition, the shops have been constructed by the Improvement Trust/Municipality and there was no agreement between the tenants and the municipality or the trust that the tenants would be given the shops and that too of the same area which was already under their occupation. Thus, the appellants or any of the tenants could not possibly claim exactly the same area as it was with them before the demolition of the katcha shops. The appellants have no right to claim more area than the presently occupied by them. In the absence of any right established, no fault could be found with the judgment and decree of the lower Appellate Court. It may further be noticed that respondent No. 1 was also one of the occupants of the land to new shops under the scheme and thus, there was no illegality on the part of the Trust to allot one shop to respondent No. 1.

In view thereof, thus no substantial question of law as raised, arises in this appeal. Dismissed.