Piara Singh vs Gurmukh Singh

Pritpal Singh, J.—Gurmukh Singh filed a suit for possession of the shop, fully described in the plaint, against Piara Singh, defendant on the plea that he had purchased it from the Rehabilitation Department in a public auction and that Piara Singh was in wrongful possession thereof. The defendant contested the suit and submitted that in fact he had purchased the disputed shop benami in the name of the plaintiff as he owned the adjoining premises to which there was no other access except from the shop in dispute. He further contended that he has been in possession of this shop as a tenant under the Custodian and as such his possession therein is not wrongful. He pleaded that by his act and conduct the plaintiff was estopped from denying his ownership of the diputed shop and the use of passage to his adjoining premises from this shop.

The learned trial Court held that the defendant han failed to prove that he had purchased the disputed shop benami in plaintiff''s name and also his possession therein as a tenant under the Custodian prior to its transfer in plaintiff''s favour. Defendant''s contention regarding estoppel was also repelled. Consequently, the plaintiff''s suit for possession was decreed.

The defendant''s first appeal against the decree and judgment of the trial Court was dismissed by the Additional District Judge, Gurdaspur. He has filed the instant second appeal against the judgment of the first appellate Court.

The solitary law point raised by the learned appellant''s counsel in this second appeal is that although the appellant had pleaded a right of easement of necessity relating to passage to his adjoining premises from the disputed shop, the learned trial Court neither framed any issue on this pleading nor determined this point. It is, therefore, submitted that an issue regarding easement of necessity may be framed and the trial Court may be directed to give its finding thereon.

I have heard the learned counsel for the parties. This point was taken up before the first appellate Court also. It was, howevever, held that no specific plea regarding easement of necessity having been taken in the written statement, no issue in connection thereof required to be framed. A clear finding has been given by the first appellate Court that the appellant''s counsel had conceded before it that in the absence of pleadings regarding easement, it was not necessary to frame the issue.

I have gone through the written statement of the defendant-appellant and find that there is no flaw in the aforesaid finding of the first appellate Court on this point. There is no pleading regarding easement of necessity in the written statement and as such it is futile for the appellant to claim the framing of an issue in respect thereof.

The concurrent finding of the fact of the courts below that the plaintiff is owner of the shop in dispute and not merely a benamidar and that the defendant is not proved in possession of the shop as tenant cannot be questioned in second appeal.

No other point was urged before me. Hence finding no merit in this appeal, it is hereby dismissed with costs, Counsel fee Rs. 300/-.