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2000 DIGILAW 790 (DEL)

CHANDER v. DHANPAL ALIAS DHARAM PAL

2000-09-08

B.K.RAMAMOORTHY

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K. RAMAMOORTHY ( 1 ) THE defendants in the suit are the appellants. The plaintiffs filed the suit for bare. injunction on the strength of their alleged possession. The plaintiffs also came forward with a case that they were put in possession by virtue of an agreement for sale. The trial court decreed the suit and the lower appellate court concurred with the view taken by the trial court and, therefore, the defendants are before this Court in the second appeal. On 6. 1. 1982 the following question of law was framed by this Court:- "whether the courts below were in error in relying on the entries in the khasra girdawri for the years 1974-75 and 1975-76 in view of the order made by the settlement Officer, (Consolidation), a copy of which is exhibit D-1?" ( 2 ) THE learned counsel for the appellants Mr. R. M. Sinha submitted that when the plaintiffs relied upon an agreement for sale their remedy is to file a suit for specific performance and for injunction and on the strength of the agreement for sale they cannot seek to pray for injunction and disturb the possession of the defendants with reference to the suit property. The learned counsel referred to the following rulings:- 1. M/s Pragati Steels and Anr. Vs. Harbhajan Singh and Ors. 1996 (2) CLJ (C. Cr. and Rev) 354. 2. Jasmer Singh and others Vs. Kanwaljit Singh and another, AIR 1991 punjab and Haryana 194. 3. Rajendra Kumar Vs. Mahendra Kumar Mittal and others, AIR 1992 allahabad 35. 4. Ranchhoddas Chhaganlal s Devaji Supdu Dorik and others. AIR 1977 sc 1517. 5. M/s. Technicians Studio Pvt. Ltd. Vs. Smt. Lila Ghosh and another, AIR 1977 SC 2425 . ( 3 ) THE learned counsel for the respondents Mr. R. S. Dewas submitted that the appellants did not raise any question relating to the suit for specific performance. The courts below have come to the conclusion that the respondents are in possession. The appellants being third parties to the agreement cannot claim that the proper remedy by the respondents is to file a suit for specific performance. The learned counsel submitted that the agreement and the sale deed which is not registered, relied upon by the respondents, for sustaining their possession could not be produced as they are not traceable. The appellants being third parties to the agreement cannot claim that the proper remedy by the respondents is to file a suit for specific performance. The learned counsel submitted that the agreement and the sale deed which is not registered, relied upon by the respondents, for sustaining their possession could not be produced as they are not traceable. ( 4 ) THE main point in this case is that the appellants and the respondents claim to be in possession of the suit property. The appellants have come forward with a case that they are in possession as bhoomidars and the respondents sought to interfere with their possession of the property. The case of the appellants is that with a view to showing that the respondents are in possession of the property they had projected an agreement for sale and the document of sale which is not registered from a person who is stated to be having title and possession of the suit property. The further case of the appellants is that if the respondents want to sustain their case of possession on the strength of an agreement, their remedy is to sue for specific performance and they cannot file a suit for bare injunction. The learned counsel for the appellants submitted that the order dated 16. 5. 1972 which is marked as Ex. D. 1, of the Settlement officer Consolidation would completely nullify the khasra girdwari relied upon by the respondents. The lower courts have not considered the legal effect of Ex. D. 1 in its proper perspective. The lower appellate court has observed:- "appellants have placed reliance upon only one document Ex. D. 1 which is a khasra girdawri for the year 1972-73 showing that they are in possession of the suit land. Even if it be presumed that the defendants were in possession during this year, this ipso facto does not lead to conclusion that they were forcibly dispossessed by the plaintiffs/respondents and further that the entries during 1974-75 and 75-76 were got manipulated. Thus in view of the strong documentary evidence on record the finding of learned trial court on issue no. 1 to the effect that plaintiffs are in possession of the suit land is affirmed. " ( 5 ) THE legal affect of Ex. D. 1 dated 16. 5. Thus in view of the strong documentary evidence on record the finding of learned trial court on issue no. 1 to the effect that plaintiffs are in possession of the suit land is affirmed. " ( 5 ) THE legal affect of Ex. D. 1 dated 16. 5. 1972 cannot be ignored and on the basis of entries-in khasra girdawries for the years 1974-75 and 1975-76 the respondents cannot project their possession of the property. The proper course that should have been adopted by the respondents was to file a comprehensive suit for title and other consequential reliefs. They have come forward with a case for injunction on the premise that they are in possession of the property. On the documents placed on record -the lower courts have come to a wrong conclusion in law that the documents produced by the respondents would show that they are in possession of the property. The findings rendered by the courts below are perverse. The lower courts have taken a wrong view with reference to the legal affect of Ex. D. 1. Thus, the substantial question of law between the parties in the second appeal is answered in favour of the appellants and the decrees of the courts below are set aside. Second Appeal is allowed. There shall be no order as to costs throughout.