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2000 DIGILAW 613 (PNJ)

Tej Kaur v. Sarwan Singh

2000-05-31

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - Unsuccessful plaintiff has filed the present Regular Second Appeal against the judgment dated 18.1.2000 passed by the learned Additional District Judge, Sangrur, who affirmed the judgment and decree dated 16.4.1999, passed by the Court of Civil Judge (Junior Division), Dhuri, who dismissed the suit of the plaintiff for declaration and permanent injunction. 2. Some facts can be noticed in the following manner : Tej Kaur filed a suit for declaration and injunction against the defendants on the ground that she is the sole owner and in possession of the property in dispute as per writing dated 15.9.1995 vide which she purchased the property in question from respondents No. 1 to 5 and the possession of the property was also delivered to her on the same day. Now defendants are trying to interfere in the possession of the plaintiff. Hence this suit. 3. The suit was contested by the defendants separately. According to defendants No. 1 to 5 the plaintiff was neither owner nor in possession of any part of the property; that the plaintiff had filed the present suit on the basis of forged and fabricated writing dated 15.9.1995 which is unregistered document. On merits, these defendants also denied the other allegations of the plaintiff. Defendants No. 6 land 7 also filed a separate written statement and they alleged that they are owners in exclusive possession of part of the suit property and, therefore, the suit of the plaintiff may be dismissed. 4. The plaintiff filed a rejoinder to the written statements of the defendants in which he reiterated the allegations made in the plaint by denying those of the written statement and on the pleadings of the parties the following issues were formed :- 1. Whether the plaintiff has become owner in possession of the suit property on the basis of writing dated 15.9.1995 ? OPP 2. Whether the plaintiff is entitled to injunction, as prayed for ? OPP 3. Whether the plaintiff has no cause of action and locus standi to file the present suit ? OPD 4. Whether the writing dated 15.9.1995 is forged and fabricated and unregistered, if so, its effect ? OPP 5. The parties led oral as well as documentary evidence in support of their case. The learned trial Court vide its judgment and decree dated 16.4.1999 dismissed the suit of the plaintiff. 6. OPD 4. Whether the writing dated 15.9.1995 is forged and fabricated and unregistered, if so, its effect ? OPP 5. The parties led oral as well as documentary evidence in support of their case. The learned trial Court vide its judgment and decree dated 16.4.1999 dismissed the suit of the plaintiff. 6. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal before the Court of Additional District Judge who also dismissed the appeal for the reasons given in paras No. 7 to 9 of its judgment, which are reproduced as under :- "While challenging the findings of the learned lower Court, the learned counsel for the appellant submitted that the house in dispute is in possession of the appellant, which was given to the appellant by the respondents No. 1 to 5 as per writing dated 15.9.1995 and since then the appellant is in possession of the same as owner. After purchasing the property in dispute, the appellant also made improvements and also spent huge amount on the property in dispute. The learned lower Court had wrongly decided issues No. 1 and 2 against the appellant and had also not given sufficient opportunity to the appellant to lead evidence. The learned counsel for the appellant has also submitted that as per agreement dated 15.3.1995 Ex.P-1, the respondents had received Rs. 14,000/- as full sale consideration from the appellant and delivered the possession of the property in dispute. The agreement dated 15.3.1995 was also written on stamp paper of Rs. 5/- by a regular deed writer and was witnessed by Shri Balwant Singh Lambardar of Bamal. The agreement Ex.P.1 stands duly proved from the statements of PW1, PW2 and PW3. Thus, the findings recorded by learned Counsel on issues No. 1 and 2 are liable to be reversed. Even though the document Ex.P1 is considered inadmissible in evidence, it can be very well used to prove the nature of the possession of the appellant in view of the decision of Honble High Court of Delhi in a case Dhan Parkash Gupta v. Jai Narain Goyal cited as 1988(1) Judicial Reports page 284. 8. The learned counsel for the respondents, on the other hand, submitted that the alleged writing Ex.P.1 is nothing else, but an agreement to sell the suit property for a consideration of Rs. 8. The learned counsel for the respondents, on the other hand, submitted that the alleged writing Ex.P.1 is nothing else, but an agreement to sell the suit property for a consideration of Rs. 14,000/- which obviously could not transfer any right in favour of the appellant, as according to Section 17 of the Registration Act, every relinquishment worth Rs. 100/- and upward has to be effected by a registered document and to support his contention, the learned counsel for the respondents has relied upon the decision of Honble High Court of Punjab and Haryana in a case Shish Pal and others v. Vikram, cited as 1999(1) PLJ 429. It is next argued by the learned counsel for the respondents that injunction cannot be issued in favour of trespasser or a person who gained unlawful possession as against the true owner and to support his contention the learned counsel for the respondents has relied upon the decision of Honble Supreme Court of India in a case Premji Ratansey Shah and others v. Union of India and others, cited as 1995(1) C.C. Cases page 1 (SC). 9. I do not find any force (in the argument) raised by the learned counsel for the appellant as entire evidence of the appellant is in respect of an agreement Ex.P1, which cannot be said to have created any title, unless it was registered as held in 1999(1) PLJ page 429 (supra). One of the vendors of the agreement is stated to be Kartar Singh, who was examined by the respondents as DW-2 and has specifically made it clear that he never sold the suit property to the appellant. It is an admission of the appellant, appearing in the witness box as PW-3 that when the agreement Ex.P.1. was scribed, Kartar Singh one of the vendors, was not present. Meaning thereby, the document Ex.P.1 was never executed by Kartar Singh in the presence of the witnesses. It is also made clear in the decision Shish Pal and others v. Vikram (supra) since the unregistered document worth Rs. 100/- and upward does not create any title, interest or right in the movable property in favour of the vendee, it can be held that for all intents and purposes the respondents remained the owner of the suit property and the appellant cannot seek injunction as against the owner in view of 1995(1) C.C. Cases page 1. 100/- and upward does not create any title, interest or right in the movable property in favour of the vendee, it can be held that for all intents and purposes the respondents remained the owner of the suit property and the appellant cannot seek injunction as against the owner in view of 1995(1) C.C. Cases page 1. The provisions of 1998(1) Judicial Reports 284 (supra) also cannot be invoked since the document Ex.P.1 does not create any interest to the appellant in the suit property. The learned lower court rightly decided issues No. 1 and 2 against the appellant and in favour of the respondents." 7. Aggrieved by the judgment and decree of the first appellate Court, the present Regular Second Appeal has been filed, which I am disposing of in limine after hearing the learned counsel for the appellant who drew my attention to the writing dated 15.9.1995 and argued that through this writing the possession of the property in question was delivered to the plaintiff. He also stated that though this agreement has not been registered still it can be looked into for collateral purposes and it shows that the possession of the property was delivered to the plaintiff. He further submitted that the son of Kartar Singh was a party to this agreement and he delivered the possession along with others and, therefore, the plaintiff can only be ejected through process of law. In support of his contention he drew my attention to a judgment reported as 1997(2) RCR 41. I have considered this submission raised by the learned counsel and I am of the considered opinion that the appellant has no case. 8. It is the basic principle of law that a tres-passer has no right to seek injunction against the true owner. The contention of the learned counsel for the appellant could be accepted by this Court had the possession been ever delivered to him by a competent person. In the present case, it is proved on the record that one of the owners of the property was Shri Kartar Singh who appeared as DW-2 and he specifically stated that he never sold the property to the plaintiff. The plaintiff while appearing as PW-3 also stated that when the writing Ex.P.1 was scribed, Shri Kartar Singh, one of the vendors was not present. The plaintiff while appearing as PW-3 also stated that when the writing Ex.P.1 was scribed, Shri Kartar Singh, one of the vendors was not present. In such a situation, the son of Shri Kartar Singh could not pass any right, tile or interest in favour of the plaintiff. The moment the possession of the plaintiff is not valid he will be considered as a trespasser and in these circumstances, a trespasser has no right to seek injunction which is a discretionary relief. In this regard reliance can be placed upon a judgment reported in 2000(2) All Instant Judgments 320, Jiya Lal v. Muni Lal and others, wherein it was held that a trespasser cannot be granted injunction as it would amount to driving to the owner to go to the Civil Court to ask for possession against a wrong-doer. It was also observed in this cited judgment that injunction is issued to enforce a right against someone who is bound to respect that right. 9. In these circumstances, the suit of the plaintiff was rightly dismissed by the Courts below. No merit. Revision dismissed.