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2002 DIGILAW 456 (PNJ)

Nagar Mal v. Ram Saran

2002-04-26

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure (for brevity to be referred as the Code) is directed against the order dated 26.11.2001 passed by the Additional District Judge, Sirsa dismissing the appeal of the plaintiff-petitioner wherein as order dated 19.9.2001 issued by the Civil Judge (Junior Division), Sirsa was challenged. The Civil Judge vide her order dated 19.9.2001 has dismissed the application of the plaintiff-petitioner filed under Order 39 Rules 1 and 2 read with Section 151 of the Code. 2. Brief facts of the case, which led to the filing of the present revision petition may firstly be noticed. The plaintiff-petitioner has filed a suit for permanent injunction restraining the defendant-respondents from interfering in his possession over the suit property which is described in detail in the head note of the plaint. The averments made in the suit show that the plaintiff-petitioner has based his claim principly on an agreement to sell dated 6.5.1986 executed in his favour by one Gori Shankar the predecessor-in-interest of the defendant-respondents. Alongwith the suit, an application for ad-interim injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code has also been filed. The application has been dismissed by both the Courts below and feeling aggrieved, the plaintiff- petitioner has approached this Court by way of this revision petition. 3. The Additional District Judge, has dismissed the application of the plaintiff-petitioner giving the following three reasons :- (a) Because the agreement to sell dated 6.5.1986 executed by one Gori Shankar in favour of the plaintiff-petitioner cannot prima facie be accepted as the averment made by the plaintiff-petitioner asserting that Gori Shankar received a sum of Rs. 40,000/- and had put him in possession of the plot in dispute stood effectively controverted by the reply filed by the defendant- respondents. The defendant-respondents have produced on record a certified copy of the plaint dated 9.6.1992 filed by the plaintiff-petitioner by instituting a civil suit against one Rama alias Ram Chand and others. In that plaint the plaintiff-petitioner has described himself as a tenant over the suit land. This fact is contradictory to the averments made in the present suit that he is owner in possession by virtue of agreement to sell dated 6.5.1986. In that plaint the plaintiff-petitioner has described himself as a tenant over the suit land. This fact is contradictory to the averments made in the present suit that he is owner in possession by virtue of agreement to sell dated 6.5.1986. b) The second ground for declining the relief to the plaintiff- petitioner is that the Local Commissioner had visited the site on 8.5.2000 and had submitted report mentioning, inter alia, that the plot had a gate with lock put on it. The lock was opened by defendant-respondent Ram Saran son of Shri Gori Shankar in the presence of the Local Commissioner. c) Because there is a sale deed executed by one Narinder Kumar in favour of Gori Shankar on 5.12.1992. 4. Shri Sanjeev Gupta, learned counsel for the plaintiff-petitioner has argued with regard to the ground (a) that the suit filed by the plaintiff- petitioner on 19.6.1992 can, at best be, treated to have taken contradictory alternative stand and it would not completely debar the plaintiff-petitioner to claim that he is owner in possession by virtue of agreement to sell dated 6.5.1986. In support of his argument, he has placed reliance on a judgment of this Court in the case of Sewa Singh v. Joginder Singh and others, 1986 PLJ 113. 5. I have thoughtfully considered the argument raised by the learned counsel and regret my inability to accept the same. Both the Courts below have expressed a doubt over the stand taken by the plaintiff-petitioner that he is owner is possession on the basis of agreement to sell dated 6.5.1986 because in the earlier suit on 9.6.1992, diametrically opposed stand has been taken by the plaintiff-petitioner asserting that he was tenant in the suit property. Once the plaintiff-petitioner had actually paid the entire sale consideration for the suit land to Shri Gori Shankar, he had obtained possession on 6.5.1986 as asserted by him in the present suit, the averment that he was tenant in the suit property as alleged in the suit filed in 1992 could not be believed because either of them have to be incorrect and the plaintiff-petitioner could not have described himself as tenant in 1992. The judgment in Sewa Singhs case (supra) relied on by the plaintiff-petitioner is entirely different on facts as well as on law because in that case, contradictory averments were made in the pleading of a party asserting that the land was transferred by oral exchange or he has been become owner by virtue of adverse possession. This plea was found to be reconcilable after the recording of detailed evidence. However, in the present case diametrically opposed stand taken by the plaintiff-petitioner in the suit filed in 1992 and the present suit have not been explained. Therefore, the judgment of this Court in Sewa Singhs case (supra) has no application. I have no hesitation to reject the first argument raised by the learned counsel 6. The second argument raised by learned counsel for the plaintiff for the petitioner that the report of the Local Commissioner relied upon by both the Courts below stand falsified because the Additional District Judge himself visited the site on 29.12.2001 for the purpose of deciding an application under Order 30 Rule 2(A) of the Code and found that there was no gate or lock on the gate and this was contrary to what the Local Commissioner in his report dated 8.5.2000 has mentioned. This arguments also lack merit because there is a wide gap of 1-1/2 years between the date of the report of the Local Commissioner and the date of inspection undertaken by the Additional District Judge. Moreover, it has also not been shown that such an objection has been taken by the plaintiff-petitioner in his objection petition filed against the report of the Local Commissioner. Learned counsel has then argued that the entries in Bahi Khata apart from the agreement to sell would also strengthen the stand of the plaintiff- petitioner that Shri Gori Shankar has sold the plot to him and has given possession for a sale consideration of Rs. 40,000/-. This argument also is liable to be rejected because the agreement to sell itself does not create any interest in the property. This is amply supported by various judgments of this Court including Man Singh and another v. H.S. Kohli, 1997(1) PLR 643 and Anup Singh and another v. Smt. Chander Kanta and others, 1998(1) PLR 818. Moreover, the entries in Bahi Khata has neither been produced before both the Courts below nor their authenticity is verifiable. This is amply supported by various judgments of this Court including Man Singh and another v. H.S. Kohli, 1997(1) PLR 643 and Anup Singh and another v. Smt. Chander Kanta and others, 1998(1) PLR 818. Moreover, the entries in Bahi Khata has neither been produced before both the Courts below nor their authenticity is verifiable. Still further, both the Courts below have disbelieved the version of the plaintiff-petitioner that by virtue of agreement dated 6.5.1986 he is in possession and, thus, he is entitled to continue his possession. No other argument has been urged. For the reasons recorded above, this revision petition fails and is dismissed. Revision dismissed.