DAVINDER SINGH Vs. CAPTAIN HARJIT SINGH

JUDGEMENT

(1.) Captain Harjit Singh (since deceased and now represented by his legal representatives) (hereinafter referred to as the respondent) filed a suit on 28.5.1985 for a mandatory injunction directing the Jalandhar Improvement Trust (for short the Trust) to demarcate plot No. 61 (now numbered as 23) (hereinafter called the plot) in the development scheme known as '55 Acres Scheme'. He also sought delivery of possession of the said plot as a local displaced person. His grievance was that instead of delivering possession to him the Trust had allowed one Didar Singh to raise construction over the plot. The suit was dismissed by the trial court on 3.3.1987 and an appeal filed against that decision was accepted by the Additional District Judge, Jalandhar on 28.3.1989 and the suit was decreed. The Trust was directed to demarcate the plot measuring 1 kanals 19 marlas. A further direction was issued to deliver possession of the plot to the respondent. It may be mentioned that Didar Singh was also a defendant in the suit.

(2.) During the pendency of the aforesaid suit, Didar Singh and his son Devinder Singh filed a suit on 7.3.1986 only against the Trust seeking to restrain it from demolishing the construction raised by them over the plot alleging that the plot had been purchased by them from the Rehabilitation Department. The respondent on learning about the institution of this suit moved as application 31.3.1986 for being made a defendant in the suit. This application was dismissed on 20.5.1986. The suit was decree on 27.9.1988 against the Trust and the latter had been restrained from demolishing the construction raised by Didar Singh over the plot.

(3.) The respondent moved an application for the execution of the decree obtained by him and sought possession of the plot. In the execution proceedings the Trust expressed its inability to hand over possession to the respondent because of the decree obtained by Didar Singh and his son. It was then that the respondent sought permission from the District Judge, Jalandhar to file an appeal against the judgment and decree dated 27.9.1988 to which he was not a party. He also moved an application under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal. Both these applications were contested by Didar Singh and his son primarily on the ground that the respondent had no right to file an appeal against the decree dated 27.9.1988 as he was not a party to the suit in which that decree was passed and that in any case there was no ground to condone the delay. In order to dispose of these applications the lower appellate court framed the following issues :-