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2001 DIGILAW 400 (PNJ)

Harbrinder Singh v. Pawan Kumar Sharma

2001-03-30

BAKHSHISH KAUR

body2001
JUDGMENT Mrs. Bakhshish Kaur, J. - This is plaintiffs revision directed against the order dated September 25, 2000, passed by the learned Additional District Judge, Chandigarh, who after allowing the appeal filed by the defendant- respondents has dismissed the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure. 2. Shri Jagan Nath Sharma was the owner of the House No. 3143, Section 21-D, Chandigarh. He died issueless on 23.6.1998 at Ropar. His wife had also died. Om Parkash Sharma is the nephew of Jagan Nath Sharma. According to the plaintiffs, Shri Jagan Nath Sharma had executed a Will on 28.4.1980 bequeathing his entire movable and immovable property in favour of Om Parkash Sharma. Therefore, he is the sole heir and successor-in-interest of Jagan Nath Sharma. 3. On 16.10.1998, Om Parkash Sharma entered into an agreement to sell 1/3rd share in the house consisting of ground floor having drawing-dining, four bed rooms, two toilets, two kitchens, car garage, passage and the ground floor of the annexe consisting of three bed rooms, kitchen, bath room and a toilet in favour of the plaintiffs for a consideration of Rs. 15 lacs. In part performance of the agreement, Om Parkash Sharma had delivered vacant possession of the front portion of the ground floor of the house. The telephone, beds, A. C. and some other household articles lying therein were also handed over to the plaintiffs by Om Parkash Sharma and since then they are in possession of this house,. The plaintiffs, therefore, filed a suit for permanent injunction restraining the defendants from interfering and dispossessing them illegally and forcibly from the ground floor of the house till the decision of the suit. 4. Along with it, an application under Order 39 Rules 1 and 2 CPC was also filed. 5. The suit and the application were strongly resisted by the defendant- respondents by raising preliminary objections that the suit titled Om Parkash Sharma v. Avinashi Lal and others pertaining to this property is already pending in the Court of Shri Jagnahar Singh, Civil Judge (Sr. Division), Chandigarh. Therefore, this suit cannot proceed under Section 10 of the Code of Civil Procedure. The defendant No. 5 is a charitable trust, therefore, the suit is not maintainable for want of leave to the Court as required under Section 92 of the Code. Division), Chandigarh. Therefore, this suit cannot proceed under Section 10 of the Code of Civil Procedure. The defendant No. 5 is a charitable trust, therefore, the suit is not maintainable for want of leave to the Court as required under Section 92 of the Code. It is denied that Om Parkash Sharma was ever in possession of the property either in the life time of Jagan Nath Sharma or thereafter. In fact, Jagan Nath Sharma had created the charitable trust in the name and style of Pushpawati J.N. Sharma Charitable Trust registered on 1.6.1998. Thereafter, he had executed a Will dated 8.6.1998 bequeathing the property in dispute in favour of Charitable Trust along with the other movable property. The Will was registered on 8.6.1999 in favour of the trust and it being the last Will supersedes the earlier Will dates 28.4.1980 allegedly set up by Om Parkash Sharma. 6. I have heard Shri H.S. Gill, Senior Advocate, assisted by Shri S.M.L. Arora, learned counsel for the petitioners and Shri I.K. Mehta, Senior Advocate, assisted by Mrs. Sheila Didi, learned counsel for the respondents. 7. Shri H.S. Gill, learned Senior Advocate for the petitioners, in order to establish the possession of the plaintiffs over the house in dispute has made reference to certain documents, particularly the agreement to sell vide which Om Parkash Sharma had agreed to sell this house in favour of the plaintiffs. This agreement was acted upon as the vendor had received the sale consideration and thereafter possession was delivered. Since the sale is complete, therefore, the plaintiffs have every right to protect their possession. It is also contended that the ration card, identity card, the address of the petitioners mentioned in the directory of the High Court, go a long way to establish their possession. Hence, their possession is legal having acquired title on the basis of the agreement to sell executed by Om Parkash Sharma in their favour. To support his argument, he has placed reliance on Ramesh Mohan and another v. Raj Krishan and others, 1984 PLR 211 and Shikha Properties (P) Ltd. v. S. Bhagwant Singh and others, 1998(3) PLR 32 Delhi. 8. To support his argument, he has placed reliance on Ramesh Mohan and another v. Raj Krishan and others, 1984 PLR 211 and Shikha Properties (P) Ltd. v. S. Bhagwant Singh and others, 1998(3) PLR 32 Delhi. 8. It is further contended that once the trial Court had exercised the discretion by allowing the interim injunction in favour of the plaintiffs, the discretion exercised by it could not be disturbed by the Appellate Court and it will go slow in the order passed by the trial Court. In this regard, reliance is placed on Balwant Singh and others v. Gram Panchayat, Partal, 1981 PLJ 127; Smt. Vimla Devi v. Jang Bahadur, AIR 1977 Rajasthan 196; State of U.P. v. Thakurji Shri Radha Ramanji Maharaj Birajman of Shaji Temple, Bakshish Singh v. Sukhwinder Singh, 1993(3) RRR 717; The Managing Director (MIG) Hindustan Aeronautics Limited Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Limited, Balanagar, Hyderabad, AIR 1973 SC 76 and R. Viswanathan and others v. Rukn-ul-Mulk Syed Abdul Wajid since deceased and others, AIR 1963 SC 1. 9. The findings of the first Appellate Court have also been challenged on the point that the learned Additional District Judge has nowhere discussed that the findings recorded by the trial Court are against the settled principles of law envisaged under Order 39 Rules 1 and 2 CPC. 10. There is no dispute to the proposition of law that the Appellate Court should go slow in the finding recorded by the trial Court who had exercised the discretion in dealing with the matter under Order 39 Rules 1 and 2 CPC but it is also to be kept in view whether sufficient material has been brought on record to establish a prima facie case in favour of the plaintiffs. Is the execution of an agreement to sell sufficient to clothe the plaintiffs with the right to possession over the property in dispute ? Whether the disputed property is stated to be of far more value than the one mentioned in the agreement to sell ? Whether the vendor Om Parkash Sharma had become the owner of the house in dispute ? And whether he was in a position to confer better title on the vendee ? 11. Whether the disputed property is stated to be of far more value than the one mentioned in the agreement to sell ? Whether the vendor Om Parkash Sharma had become the owner of the house in dispute ? And whether he was in a position to confer better title on the vendee ? 11. To substantiate the plea that the plaintiffs are actually in possession of the property in dispute, reference was also made to an First Information Report registered against the petitioners, wherein it is mentioned that after breaking open the locks, they had taken possession of the property. Though the registration of the case is admitted, but it is averred that cancellation report has already been submitted by the Illaqa Magistrate, whereas according to the respondents, the cancellation report has not been submitted. In fact, the challan has been presented before the Illaqa Magistrate and the case is at the stage of recording of prosecution evidence. Whether a person can establish his possession on the basis of Criminal Case registered against him ? The answer to this query is in negative. Annexure P-3 is a copy of the complaint sent by Smt. Sheila Didi, Prem Sharda and Triveni Sharma addressed to the Station House Officer, Police Station, Sector 19, Chandigarh. By giving reference to D.D.R. No. 37 dated 24.10.1998, they have further submitted that Shri Rajinder Singh, Advocate, his sons and other family members along with ten to twelve unknown persons have forcibly broke open the locks of the property under the possession of the Trust and occupied the same and kidnapped their caretaker Pawan Kumar. Request was made for restoration of Trust property, other belongings and production of the man abducted by them besides taking legal action. 12. Thus, taking into consideration these facts, the Appellate Court was of the considered view that when the documents such as ration card, identity card and the directory showing the addresses of the plaintiffs are unilateral documents and these cannot be conclusive proof of possession of the plaintiffs, I am of the view that no case is made out to interfere with the order passed by the Appellate Court. 13. In The Managing Director (MIG) Hindustan Aeronautics Limited Balanagars case (supra), their Lordships have observed as under : "5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. 13. In The Managing Director (MIG) Hindustan Aeronautics Limited Balanagars case (supra), their Lordships have observed as under : "5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code." 14. This authority was also referred in a later authority of the Supreme Court reported as the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and another, AIR 1976 SC 2621 holding that the interference by the High Court with the concurrent findings was unjustified as the Court had overlooked the principles governing interference under Section 115 of the Code of Civil Procedure. 15. Before parting with the judgment, I would like to point out that during the course of arguments, Shri Mehta, learned Senior Advocate for the respondents offered and made a proposal to the opposite side that let the petitioners present in Court state that they are in possession of any portion of the property in dispute, then an official of the Court may be directed to visit the premises to assess the true facts existing on the spot. The offer so made was, however, not accepted. In fact, the silence on their part implied that they are not willing to state this fact. This fact, of course, is not the deciding factor for the purpose of decision of this revision petition or in the exercise of revisional jurisdiction, yet the aforesaid circumstances and the documents brought on the record to indicate that the petitioners are not in possession of the property in dispute, therefore, there is no ground to interfere with the impugned order passed by the learned Additional District Judge. 16. For the aforesaid reason, the civil revision is dismissed. Petition dismissed.