TARLOK CHAND Vs. VIJAY KUMAR

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated November 28, 1989 passed by the Additional District Judge by which the appeal filed by the defendant-appellant was dismissed and judgment and decree dated 28.11.1987 passed by the trial court (decreeing the suit of the plaintiff with costs) was upheld.

(2.) Briefly stated, the facts of the case, as given in the plaint are that plaintiff Vijay Kumar filed the suit for declaration to the effect that the owner in possession of the ship, shown in red colour and marked as ABCD in the site plan attached with the plaint and as detailed and described in the heading of the plaint and that the defendant has no right or title in the said shop and further that the order dated 6.1.1986 passed by the Sub Divisional Magistrate, Balachaur, under Section 145, Code of Criminal Procedure, is illegal, null and void and ineffective against the rights of the plaintiff in respect of the shop, in question. Consequential relief was claimed for permanent injunction restraining the defendants from interfering, in any manner, in the possession of the plaintiff.

(3.) The plaintiff alleged that the shop, shown as red in site plan Exhibit PW-9/A also marked as ABCD therein and bounded as - East : Zila Parishad Road; West : shop of Vidya Kumar plaintiff; North : shop of Bhagwan; South : shop of Vidya Wati situated in the Abadi of Balchaur, was jointly owned by Vijay Kumar plaintiff and his uncle Tarlok Chand defendant. There was allegedly a partition between the parties of their properties and the vacant plot under the disputed shop had fallen to the share of Vijay Kumar plaintiff and a memorandum of partition dated 20.3.1984 was allegedly executed between the parties. There was a dispute between the parties regarding possession over the same, which was taken cognizance of by the Sub Divisional Magistrate, Balachaur, under section 145 Cr. P.C. The Sub Divisional Magistrate, appointed Shri Mehar Chand Kanungo as Receiver who sealed the shop. Vide his orders dated 6.1.1986, the Sub Divisional Magistrate, Balachaur, found that before initiation of the proceedings under Section 145 Cr.P.C. on 31.1.1985 defendant Tarlok Chand was in possession of the suit shop, and, accordingly, he ordered the official Receiver to hand over the possession of the disputed shop to defendant Tarlok Chand, against which order plaintiff Vijay Kumar filed a revision petition in the Hon'ble High court, which was dismissed as withdrawn on 5.2.1987, consequent upon the institution of the present suit. Plaintiff Vijay Kumar has pleaded in his plaint that the plot underneath the shop was given to him during the partition of the properties between the parties and that he had also raised construction thereon. He has also pleaded that he had held an opening ceremony on 29.7.1985 of the disputed shop and that he had started a cloth business therein. He has further pleaded that on 27.6.1986 when the construction of the shop in dispute was completed, the defendant alongwith his sons and one Rugha Ram came to the disputed shop and caused injuries to his brother, as a result of which first information report was also lodged in police station, Balachaur.