Research › Browse › Judgment

Rajasthan High Court · body

1994 DIGILAW 655 (RAJ)

Ramzan Khan v. Sarjoo Dass

1994-08-23

GOKUL CHAND MITAL

body1994
Honble MITAL, C.J. — This is a Revision filed against the order dated 13.4.1992 of the District Judge, Sirohi. (2). Sarjoo Dass filed a suit against both the defendants for declaration that he is the owner of the land in question and also prayed for permanent injunction to restrain the defendants not to interfere with his possession. (3). The plaintiffs case is that defendant No.l Jan Mohd. agreed to sell a residential plot to the plaintiff Sarjoo Dass for Rs. 1800/- vide agreement dated 25.6.79 and delivered the possession to the plaintiff. Rs. 1000/- were paid at the time of agreement as advance money and another sum of Rs. 600/-were paid on 6.12.79 and the remaining Rs. 200/- were to be paid at the time of the execution of sale-deed. (4). It is also averred in the plaint that when the plaintiff made enquiries from the Gram Panchayat and Tehsil he learnt on 6.9.91 that the suit land had already been sold by a registered sale-deed dated 19.10.87 by defendant No.l Jan Mohd. to defendant No.2 Ramzan Khan. (5). Along with the suit an application for grant of temporary injunction was filed and the same was dismissed by the trial court but on plaintiffs appeal the learned lower appellate court allowed the appeal and injuncted the subsequent vendee from interfering in plaintiffs possession. The defendant Ramzan Khan has come in Revision against the said order. (6). After hearing the learned counsel for both the sides and after going through the case, I am of the view that the Revision must succeed. (7). It is not in dispute that the title of the land in dispute never passed to the plaintiff because no sale-deed was ever executed in his favour. After the agreement dated 25.6.79, the plaintiff took no steps whatsoever for full 12 years for seeking specific performance of the said agreement to sell which gives credence to the contention raised by the defendants in their written statement that after the said agreement the plaintiff lost interest in the land and he himself came with defendant No.2 to defendant No.l and made a proposition that the later may sell the land to the former. (8). On the point of possession the learned trial court concluded that the possession of the plaintiff is not proved. (8). On the point of possession the learned trial court concluded that the possession of the plaintiff is not proved. This fact was further corroborated by the report of the local Commissioner who was appointed by the learned appellate court. The report of the Commissioner dated 21.1.92 along with the map goes to show that the walls of two rooms stood raised to the roof level at the time of inspection and some more construction material was lying on the site, although no construction activity was in progress when the Commissions visited the disputed place. Neither the plaintiff raised any objection to the factual aspect of the report of the Commissioner nor the learned appellate court has given any reason to suspect the veracity of the report. This is not the contention of the plaintiff that the construction referred to in the report of the Commissioner have been raised by him and the material on the sport belongs to him. (9). In view of the aforementioned clear-cut position, there was no occasion for the appellate court to differ with the finding of the trial court on the point of possession but the learned appellate Judge disagreed with the trial court on this point on a very flimsy argument that since the agreement to sell makes a mention of delivery of possession to the plaintiff and execution of the agreement of sale is admitted in the written statement, this amount to admission of plaintiffs possession by the defendants, whereas the defendants in para 2 of their written statement have categorically denied that the possession of the land was ever delivered to the plaintiff. (10). It will not be out of place to make a mention here that neither there is a sale-deed in plaintiffs favour nor the plaintiff has pleaded his right of possession on the basis of part performance under Section 53-A of the Transfer of Property Act. He is only an intending purchaser. Agreement of sale does not create any interest in property agreed to be purchased by him. (11). It is quite strange that the learned appellate Judge has very conveniently ignored the entire factual position of the disputed land as well as specific denial of defendants in the written statements and drawn wrong conclusions of prima facie case, balance of convenience and irreparable loss in favour of plaintiff and the reasons not apparent on the record. (12). (11). It is quite strange that the learned appellate Judge has very conveniently ignored the entire factual position of the disputed land as well as specific denial of defendants in the written statements and drawn wrong conclusions of prima facie case, balance of convenience and irreparable loss in favour of plaintiff and the reasons not apparent on the record. (12). I find that it is a case in which a person of ordinary prudence would not have grant an injunction order in favour of the plaintiff and the learned appellate Judge, while allowing the appeal, ignored the following points completely: — a. The agreement to sell was executed on 25.6.79 and the plaintiff slept over it for more than 12 years by not filing a suit for specific performance. b. There being no sale-deed in favour of the plaintiff, no interest could pass to him unless the contract in question was specifically enforced. c. There is no plea on the part of the plaintiff to the effect that he has right of possession on the basis of part performance of the contract under Section 53-A of the Transfer of Property Act. d. Apart from the finding of the trial court, the report of the Commissioner left no doubt that it was defendant No.2, who was in possession of the land and he actually had raised constructions over it. The veracity of the report has neither been challenged by the plaintiff nor the learned appellate Judge has recorded a finding that the report is untrue or unreliable. e. The appellate Judge has wrongly drawn an inference of admission on the part of defendants regarding delivery of possession to the plaintiff ignoring the clear-cut denial of the defendants in this respect in para 2 of the written statement. (13). In the result, I hold that the lower appellate court seriously erred in law and exceeded his jurisdiction in reversing the well considered order of the trial Judge specially when at the appellate stage more matter was available against the plaintiff after the submission of the Commissioners report about raising of construction by Ramzan Khan. (14). Most of the matters have been conveniently over-looked by the learned appellate Judge and it is difficult to say for what reasons. (15). For the reasons recorded above, the Revision is allowed with costs throughout, which are quantified at Rs. (14). Most of the matters have been conveniently over-looked by the learned appellate Judge and it is difficult to say for what reasons. (15). For the reasons recorded above, the Revision is allowed with costs throughout, which are quantified at Rs. 2500/- and the order of learned District Judge dated 13.4.92 is set aside and the application for grant of temporary injunction filed by plaintiff Sarjoo Dass, is dismissed. The parties through their counsel are directed to appear before the trial court on 28.9.94. The record of the case be sent back to the trial court forthwith. Sarjoo Dass is directed to pay the costs Rs. 2500/- to Ramzan Khan on 28.9.94 and in case the costs are not paid on that day, one more date will be given by the trial court to Sarjoo Dass for paying that amount, which date shall not be beyohd the period of one month from 28.9.94 and in case the amount of costs is not paid within the extended period, the suit will be liable to be dismissed for non-prosecution.