Smt. Sooki alias Sarki Dolma vs Smt. Usha Devi and Smt. Indira Devi

Dev Darshan Sud, J.—These three appeals involve a common questions of law and facts, therefore, are being disposed of by this judgment. Appellants in these appeal are those of the defendants against whom a decree of mandatory injunction to remove kiosk (Khoka), as marked in the site plan in each case, within one month was passed by the learned trial Court. In appeals judgments have been affirmed by learned First Appellate Court.

Plaintiffs Smt. Usha Devi and Smt. Indira Devi instituted three suits namely Civil Suit No. 5 of 2007 against Smt. Sonam, Civil Suit No. 6 of 2007 against Jindu and Civil Suit No. 4 of 2007 against Smt. Sooki alias Sarki Dolma. The common pleadings were that the defendant(s) in each of the suit was/were bound by the agreement dated 14.4.2003 entered into interse the parties and mandatory injunction for demolition was prayed for. The pleadings were that they are owner in possession of the suit land situated at Beasa Mour, Akhara Bazar, Kullu as recorded in jamabandi for the year 2001-2002. A part of this land was occupied by each of the defendant(s) illegally and without any right to occupation wherein they had erected kiosk (khokha) of different dimensions, namely, 26 feet x 23 feet, 11.6 feet x 32 feet and 18 feet x 19 feet as depicted in the site plans.

The suit was contested by each of the defendants on various grounds. Seven issues were settled in each suit as instituted. All the issues were identical. Primary issue for consideration of the learned trial Court was as to whether the plaintiffs were entitled to the vacant possession of the suit land on the basis of the agreement dated 14.4.2003. The plaintiffs proved on record agreement, Ex.PW1/A (in each case), dated 14.4.2003, which according to the plaintiffs prove the illegal occupation of the land by each of the defendant(s). One defence urged was that the land was not that of the plaintiffs but State Government was the co-owner of this land and in these circumstances no decree for mandatory injunction could be granted.

The learned trial Court, adverting to Ex. PW1/A holds that there was an earlier suit between the parties, which was dismissed in default on 8.3.2001. An application under Order 9, Rule 9 of the CPC (hereinafter referred to as CPC) was filed which was also dismissed on 30.5.2002. The parties thereafter entered into an agreement with respect to the kiosk (khokha) of each of the defendant(s). The plaintiffs in the case agreed not to accept any rent as the defendant(s) had agreed to remove the kiosk (khokha) and deliver vacant possession of the suit land to the plaintiffs on or before 31.12.2003. It was agreed that if this was not done then in that event the plaintiffs were at liberty to institute proper proceedings in Court of law for eviction etc. On the plea that the land was held by the provincial Government/State Government or any other agency except plaintiffs no evidence was led by the defendants. The land having been duly demarcated, the learned trial Court holds that the plaintiff were in fact owners of the suit land and agreement Ex.PW1/A was entered interse the parties. Each of the defendants appealed. A number of contentions were raised before the learned Appellate Court which after re-appreciating the evidence on record, rejected the contentions of the appellant(s)/defendant(s) including the plea that area had not been identified and land does not belong to the respondents. On Ex. PW1/A, the learned Appellate Court reconsider the evidence of PW3 Baldev Sharma, witness to the agreement who stated that its contents were readover and explained to the parties and thereafter they put their signatures on it.

One issue raised was with respect to the applicability of Section 11 of the CPC when it was urged that because of the findings of the learned Rent Controller vide Ex. PB, order dated 17.6.2007, the present suit was barred. It is trite that in proceedings under the Rent Act no findings of ownership can be rendered. In any event the defendants after having agreed to return vacant possession of the land to the plaintiffs vide Ex.PW1/A, this question does not arise for determination. The defendants are in appeal against the concurrent findings of the two Courts below. Having gone through the facts of the case and judgment of the two Courts below, I do not find that any question of law much less substantial question of law arises for determination of this Court. These appeals are, therefore, dismissed with this condition that the appellants will not be evicted from the suit land nor they will be asked to demolish kiosks (Khokhas) till 31st December, 2012. No execution proceedings shall be filed or entertained till date. In other words, execution of the decree is held in abeyance till that date. All appeals stands disposed of. No order as to the costs.