SANTOSH KUMARI Vs. JIND IMPROVEMENT TRUST

JUDGEMENT

(1.) The second appeal before this Court arises out of reversal of judgment of the trial Court by the First Appellate Court, whereby the suit of the plaintiff seeking mandatory injunction against defendant Jind Improvement Trust (for brevity, the Trust) for allotment of ½ of the suit property was held to be not maintainable. While dismissing the suit essentially the finding on issue No.6 was reversed, while findings on all other issues, as recorded by the trial Court were not interfered by the First Appellate Court. In the premise, the controversy herein is narrowed down to the issue of maintainability of suit as other issues are not required to be dealt with.

(2.) Briefly stated, facts herein are that Pritam Singh predecessor-in-interest of plaintiff/ appellants and Smt. Angoori Devi purchased plot No.47 to 50 situated in Vinod Nagar, Jind vide registered sale deed dated 26.04.1967. Later on, these plots in question were acquired by defendant No.1-Trust vide award dated 03.05.1972(Ex.D-9). As per policy decision of defendant No.1-Trust, resolution No. 140 dated 7.2.1973 was passed by defendant No.1 to allot Plot No.31 in Scheme No.6 in lieu of Plot No. 47 to 50 of Vinod Nagar acquired by the Trust. However, plot No.31 in Scheme No.6 was not available for allotment. Husband of defendant No.2 was employee of Deputy Commissioner office, Jind. Pritam Singh, predecessor-in- interest of the plaintiffs and proforma defendant died on 21.11.1973. Taking undue advantage of the situation, defendant No.2 got plot No.41 allotted in Scheme No.19 from Improvement Trust vide letter dated 15.4.1983(Ex.D-2). Consequently, an allotment letter dated 19.08.1983 (Ex.D-1) was issued and agreement dated 5.9.1983(Ex.D-3) was executed in favour of defendant No.2 only. The plaintiff/ appellants on coming to know about the allotment of plot No.41 on reserve price only in the name of defendant No.2, immediately served notice dated 05.10.1983(Ex.P-2) on Trust for allotment of half share of plot in favour of plaintiff/ appellants. Subsequently, the plaintiff/ appellants also served a reminder dated 09.11.1983(Ex.P-3). Ultimately, a suit was filed for mandatory injunction directing the defendant/ respondent No.1 for allotment of half share of plot No.41 in Scheme No.19 in favour of plaintiff and proforma defendant. Consequential relief of permanent injunction restraining the defendant No.1-Trust from delivering the possession of entire plot and from issuing sale certificate and executing the sale deed exclusively in favour of defendant/ respondent No.2 was also sought.

(3.) Defendant No.2 contested the suit of the plaintiff/ appellants. She claimed herself to be exclusive owner in possession of plot No.47 to 50 Vinod Nagar, Jind. She alleged that Pritam Singh (predecessor-in-interest of plaintiff/ appellants and proforma defendant) was a benamidar. It was further pleaded that since Pritam Singh was only benamidar to the extent of half share, plot was rightly allotted by Trust in favour of defendant No.2 on reserve price. Action of defendant No.1 Trust was thus legal and justified. Defendant No.2 also raised preliminary objections that suit of the plaintiff discloses no cause of action, it is bad for non-joinder of necessary parties and want of notice under Section 98 of the Town Improvement Trust, Jind. A preliminary objection regarding maintainability of the suit was also taken.