SHANKARI Vs. KARAM KAUR

JUDGEMENT

(1.) This appeal by Shrimati Shankri is directed against the judgment and decree of the learned Senior Subordinate Judge (with enhanced appellate power), Jalandhar. It has been filed in the following circumstances :-

(2.) Shrimati Karam Kaur, respondent No. 1, filed a suit for issuing a mandatory injunction against Jalandhar Improvement Trust, defendant No. 1, ordering it to withdraw and cancel its letter dated July 22, 1970 and permit the plaintiff to proceed with the construction of her house on plot No. 22 and for restraining defendant No. 2 Shrimati Shankri (appellant) from interfering with the construction on the said plot. The plaintiff had pleaded that she along with Shrimati Shankri jointly owned a plot measuring 70 marks which was situated behind the Deputy Commissioner's residence at Jalandhar. Both of them owned half share each in above plot. The mothers of the husband of Shrimati Karam Kaur and Shrimati Shankri were sisters. The land in question had been acquired by the State for the purposes of defendant No. 1 for the development scheme known as '112.8 Acre Scheme'. (The plaintiff was offered Rs. 4,375/- as compensation for her share in the land). The plaintiff and the defendant No. 2 made a joint application dated October 22, 1959 for exemption of the plot in question from acquisition. Both of them signed the application. Defendant No. 1, as per memo dated April 16, 1923 notified to the plaintiff that 23 marlas 191 sq. ft. plot was exempted for the plaintiff and she should pay the development charges. She agreed to it and paid an amount of Rs. 2,292.05 as per cheque dated October 18, 1966. She further got adjusted towards price of the plot a sum of Rs. 4,375/-, her share of the compensation of the acquired plot. Thereafter the plaintiff tried to start building work on the plot and approached defendant No. 1 a number of times for this purpose, but she was always put off. And, to her dismay, she received a letter dated October 31, 1967 from defendant No. 1 intimating that plot was not solely exempted for the plaintiff and defendant No. 2. The plaintiff served a legal notice dated February 10/February 12, 1968. The plan submitted by the plaintiff for construction of the house on the plot in question was approved by defendant No. 1 vide orders dated February 11, 1970. The plaintiff made arrangement for proceeding with the building plans. It seems that defendant No. 2 prevailed upon defendant No. 1 to withdraw the sanction granted to the plaintiff and defendant No. 1 actually withdrew the sanction vide letter dated July 22, 1970. Thereafter the plaintiff filed the suit. The suit was resisted by the defendant. They filed separate written statements. It was pleaded in the written statement of defendant No. 1 that plaintiff and defendant No. 2 had moved a joint application for exemption from acquisition and the same had been sanctioned and exemption was granted jointly in favour of both of them. It was the duty of the plaintiff to disclose all facts regarding exemption to defendant No. 1 and to clarify the position that the exemption had been granted jointly in favour of the two. Defendant No. 1 justified its orders of cancellation of sanction for building on the plot in question on the plea that since the plaintiff and defendant No. 2 were co-owners in the property which was exempted from acquisition, both were entitled to that plot and the two could jointly construct a house thereon. Defendant No. 2 filed a separate written statement. She inter alia pleaded that the application for exemption had been given jointly for the benefit of both the owners and all the consequent proceedings negations and agreements etc. touching upon and having a bearing on exemption were for the benefit of both of them. The exemption granted by defendant No. 1 was for the benefit of the plaintiff and defendant No. 2; that the plaintiff had no exclusive rights in the plot in question and had no legal right to make construction on the plot and to exclude the answering-defendant from enjoyment of the each and every inch of that plot.

(3.) The pleadings of the parties gave rise to the framing of the following issues :-