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2003 DIGILAW 1416 (PNJ)

Hoshiar Singh v. Ram Kumar

2003-10-15

SWATANTER KUMAR

body2003
Judgment Swatanter Kumar, J. 1. Suit of the plaintiff for permanent (Prohibitory and Mandatory) injunction restraining the defendants from interfering into the possession of the plaintiff in the gawara (vacant land) measuring 847 square yards situated at Village Balahkalan described in the plaint was decreed dated 14th December, 1982. Against this judgment and decree, the defendants preferred an appeal, which was allowed by the learned first appellate court. While accepting the appeal of the defendants, suit of the plaintiff was dismissed, leaving the parties to bear their own costs, vide judgment and decree dated 12th March, 1983. Aggrieved from the judgment of the first appellate court, the present Regular Second Appeal was preferred in the year 1983. When the appeal came up for regular hearing on 13th August, 2003, in light of the judgment of the Honble Supreme Court, it was mandatory to frame a question of law arising in the appeal. Thus, vide order dated 13th August, 2003, the following order was passed, after hearing learned counsel for the parties:- "I have heard the learned counsel for the parties in the light of law enunciated by the Apex court as reported in (2001-2)128 P.L.R. 257 (S.C.) Ramavilasom Granndhasala v. M.S.S. Karayogam, and following question of law arises for consideration and is framed as under:- 1. Whether non-production of vendor of a registered sale deed can adversely effect the ownership of the vendee? 2. What is the effect of answer to the above question on issue No. 1?" The above question of law has been framed. Parties prays time to argue the matter. List on September 17, 2003. In order to answer the question arising in the present case, reference to the facts which have led to the filing of the present Regular Second Appeal is necessary. 2 The plaintiff had filed a suit, afore-noticed, claiming that he had purchased the disputed gawara from Dina son of Jhabar vide registered sale deed dated 22.2.1979 and ever since thereafter, he has been continuously owner in possession over the said property, defendant Nos. 1 to 5 have nothing to do with the property and they are likely to obstruct and interfere with the possession of the plaintiff. 3. The suit was contested by the defendants. Defendants No. 2 and 5 were given up by the plaintiff. The suit was contested by defendants No. 1, 3 and 4. 1 to 5 have nothing to do with the property and they are likely to obstruct and interfere with the possession of the plaintiff. 3. The suit was contested by the defendants. Defendants No. 2 and 5 were given up by the plaintiff. The suit was contested by defendants No. 1, 3 and 4. They denied the title of the plaintiff as well as possession. Their stand was that they had entered in the agreement to sell gawara dated 23rd October, 1979 entered between the defendants on the one hand and Hari Singh and Chiranji Lal sons of Dina on the other hand for Rs. 2500/- and earnest money was also paid. It was pleaded that they are owner in possession and the plaintiff has no title or interest in the property. 4. Learned trial court, after completion of the pleadings of the parties, framed the following issues:- 1. Whether the plaintiff and proforma defendant No. 6 are owners in possession of the plot in dispute as alleged? OPP 2. Whether the defendants are in physical possession of the plot in dispute by virtue of agreement to sell dated 23.10.1978, as alleged? OPD 3. Relief. 5. Learned trial court decided issues in favour of the plaintiff and against the defendants and thus decreed the suit. Learned trial court, while decreeing the suit, specifically noticed that the defendants did not take up any plea in the written statement as to how Hari Singh and Chiranji Lal became owners of gawara. Evidence of the defendants was closed by order of the court dated 14.12.1982. 6. In order to clearly appreciate the matter in controversy, it will be appropriate to refer to the findings recorded by the learned trial court on issues No. 1 and 2. "6. the discussion of evidence brought on record by both the parties in support of their respective claim of possession of the disputed gawara shows that preponderance of evidence is in favour of the plaintiff. The version of the defendants that they are in possession on account of agreement of sale with Hari Singh and Chiranji Lal is not at all plausible. The defendant did not take any plea in the written statement as to how Hari Singh and Chiranji Lal became owner of the disputed gawara. The version of the defendants that they are in possession on account of agreement of sale with Hari Singh and Chiranji Lal is not at all plausible. The defendant did not take any plea in the written statement as to how Hari Singh and Chiranji Lal became owner of the disputed gawara. They did not allege that it was their self acquired property or whether it had been devolved upon them from their father. In this case statement of DW4 Nihal Singh can be referred to with advantage who testified that the gawara previously belonged to Dina and after Dina, Hari Singh and Chiranji had taken possession of the same. In cross examination he stated that Dina is still alive and that Hari Singh had taken this gawara from his father. The statement made by DW4 Nihal Singh rather goes against the case of the defendants. If Dina is still alive how could gawara devolve upon his sons Hari Singh and Chiranji Lal and if Hari Singh has taken the gawara from his father as deposed by the witness the writing to the effect should have been forthcoming. It may be mentioned here that there is nothing on the file to show that Hari Singh and Chiranji Lal were in possession of the gawara in dispute at the time of alleged agreement of sale executed by them in favour of defendants. In the absence of such evidence of the case of the defendants falls to the ground. Now coming to the evidence of the plaintiff it would be seen that the plaintiff has proved that he has purchased the disputed gawara from Dina. There is a clear recital in the sale deed that possession of the gawara has been delivered to the plaintiff. This fact was also deposed to by the witness examined by the plaintiff. PW3 Ghisa Ram who is an attesting witness of the sate deed (Ex.P1) had solemnly affirmed that the possession of the disputed gawara had been delivered to plaintiff. He had verified in cross examination that possession was delivered after writing the sale deed Ex.P1 and that he was told that the possession was delivered to the plaintiff. DW5 Sardara had also lent support to the claim of the plaintiff in establishing the claim in respect of possession of the disputed gawara. He had verified in cross examination that possession was delivered after writing the sale deed Ex.P1 and that he was told that the possession was delivered to the plaintiff. DW5 Sardara had also lent support to the claim of the plaintiff in establishing the claim in respect of possession of the disputed gawara. He stated that the plaintiff is in possession of the disputed gawara and he used it to tether their cattle. He had constructed a chhappar therein. He had constructed a chhan also and that he has dumped fire-wood etc. and that the defendants have got no concern with this gawara. Not only that, the plaintiff also appeared in the witness box as PW4 and has testified that he is in possession the gawara ever since the purchase of the same from Dina vide registered sale deed Ex.P1." The above findings recorded by the learned trial court were disturbed by the first appellate court. However, as far as closing of the evidence of the defendants is concerned, the learned first appellate court affirmed the orders passed by the learned trial court and held that there is no reason to set aside the decree on that ground. However, on issue relating to the possession of the suit property, the findings of the learned trial court were disturbed by the learned appellate court by recording the following findings:- "12. Now I will take up the case on merits and will discuss both the issues together and I am of the view that issue No. 1 should be decided against the plaintiff and issue No. 2 should be decided against the defendants and since the plaintiff is not proved to be in possession or owner of the suit property, his suit for permanent injunction is liable to be dismissed. My reasons for coming to the above conclusion are as under:- (i) The plaintiff is alleged to have purchased the suit property from one Deena vide registered sale deed dated 22.2.1979 Ex.P1. There was a site plan Ex.P1/A. with the above sale deed. Now, this sale deed shows that possession was delivered to the venders at the spot. Now this Deana is admittedly alive. The plaintiff could very easily produce this vendor to prove his ownership and possession of the suit property. So, non production of the vendor makes the case of the plaintiff highly doubtful. Now, this sale deed shows that possession was delivered to the venders at the spot. Now this Deana is admittedly alive. The plaintiff could very easily produce this vendor to prove his ownership and possession of the suit property. So, non production of the vendor makes the case of the plaintiff highly doubtful. The plaintiff has relied upon the statement of PW3 Ghisa Ram PW4 Hoshiar Singh plaintiff himself and PW5 Sardara in support of his case. This evidence of the plaintiff is not at all satisfactory. Now, according to sale deed Ex.P-1 and the plan attached with it Ex.P1/A towards north of the property purchased, was the Guwara of Desh Raj and Hari Singh and towards west was house of Amar Singh, Sheo Lal etc. Now while appearing as PW4 plaintiff Hoshiar Singh has not given the above description of the boundaries. As PW4 this plaintiff has stated that towards north was guwara of Budh Ram and that towards west was house of Bhola. So, there is material inconsistency in the property allegedly purchased by him. (ii) Not only this, there is discrepancy on material particulars regarding his possession over the suit property. According to the above sale deed Ex.P1, the plaintiff took the possession of the suit property at the spot at the time of writing of the above sale deed but PW-4 plaintiff Hosiar Singh has given a different version when he states that he had taken possession earlier to registration. His another witness PW3 Ghisa Ram who is an attesting witness of the sale deed has stated that possession was delivered after writing of the sale deed. He admits that possession was not delivered in his presence. It is not clear as to when this plaintiff took possession. So, statements of PW3. Ghisa Ram, PW4 Hosiar Singh plaintiff are not convincing on the point of possession." The question that falls for consideration is whether the approach of the learned first appellate court suffers from any infirmity in law. 7 I have no hesitation in coming to the conclusion that the learned first appellant court has fallen in error, while recording the above findings so as to disturb the well reasoned findings recorded by the trial court, upon proper appreciation of evidence. 7 I have no hesitation in coming to the conclusion that the learned first appellant court has fallen in error, while recording the above findings so as to disturb the well reasoned findings recorded by the trial court, upon proper appreciation of evidence. The learned first Appellate Court could have held that since the vendor to exhibit P1 Dina was not produced, therefore, the very title as well as possession of the plaintiff would be adversely affected. There was no objection taken to the exhibition and admissibility of the sale deed, which was exhibited as Ex.P1 during the course of evidence. There was a specific stipulation in the sale deed that possession of the property has been given to the plaintiff. To my mind, once the document has been exhibited in accordance with law and is duly proved, then document seen in conjunction with the statements of PW3 and PW4, who specifically stated that the plaintiff was in possession of the property, the findings recorded by the learned first appellate court would be one, contrary to the evidence on record. This aspect of the matter could further be supported by another factor that the learned first appellate court came to a definite conclusion that the defendants have also led no substantive evidence, which was reliable and satisfactory in its appearance and substance so as establish that the defendants were owner in possession of the suit property. In fact, the learned first appellate court specifically noticed as under:- "...This witness does not know for how much money Hari Singh sold the suit property to the defendants. He admits that there is no registration. Further, this witness is inimical towards the plaintiff as he admitted that there was litigation between him and Hosiar Singh plaintiff. So, evidence of the defendants is also not satisfactory to show their possession on the suit property...." Once a definite doubt was entertained by the learned first appellate court in the evidence of the defendants, it could hardly be stated that disturbing a finding in favour of the plaintiff recorded by the learned trial court on proper appreciation of evidence, could be disturbed. The whole case of the defendants was based upon the agreement to sell exhibit DW2/1. The whole case of the defendants was based upon the agreement to sell exhibit DW2/1. 8 It is settled principle of law that an agreement to sell neither creates a title nor decides any right in favour of the person, who has entered into agreement to sell. The agreement to sell was also executed by the sons of Dina during the life time of Dina. The property was admittedly recorded in the name of Dina. 9. Learned counsel appearing for the respondents vehemently argued, while relying upon the judgment of the Honble Supreme in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., A.I.R. 1999 Supreme Court 2213 that no question of law arises in the present appeal. Further while relying upon the judgment of this Court, in the case of Mukand Singh and Ors. v. Jang Singh and Ors., (2002-2)131 P.L.R. 274, he contended that merely because two views are possible on appreciation of same evidence, the court would not interfere in the Regular Second Appear. Both these contentions are mis-conceived. The question of law as afore-referred arises in the present case. In any case, the findings recorded by the appellate court are based on no evidence and, as such, would call for interference by this Court in Regular Second Appeal. The question of not disturbing the findings, merely because two views are possible is also of no consequences in the present case. There is no other view possible than the one taken by the learned trial court. 10. The contention raised by learned counsel for the respondents is without merit. In fact such an argument would be quite opposed to the settled provisions of Indian Evidence Act relating to recording of evidence. Once the plaintiff had proved Ex.P1, it was nowhere obligatory upon the plaintiff to lead further evidence to prove the contents of the said document. The onus was on the defendants to lead cogent and proper evidence, documentary or otherwise to show that the contents of the documents were incorrect or that they have been in possession prior or after execution of Ex.P1. The defendants only relied upon statements of DW3 Hari Singh and DW4 Nihal Singh who had made a mere bald statement in favour of the defendants, unsupported by any documentary evidence. In fact their statements could hardly be relied upon. The defendants only relied upon statements of DW3 Hari Singh and DW4 Nihal Singh who had made a mere bald statement in favour of the defendants, unsupported by any documentary evidence. In fact their statements could hardly be relied upon. The defendants failed to discharge the onus placed on them under the issues and rebut the contents of Ex.P1. The learned trial court rightly declined to rely upon the statements of DW3 and DW4 particularly in view of the fact that the said witnesses were in litigation with the plaintiff for a considerable time. 11. Learned counsel for the respondents contended that the court has drawn adverse inference against the plaintiff for non-production of witness Dina, which is correct in view of the law laid down in the case of Gopal Krishnaji Ketkar v. Mohammed Haji Latif and Ors., A.I.R. 196,8 Supreme Court 1413. This contention needs to be noticed only for the purpose of rejecting the same. I have already noticed that the plaintiff was under no obligation to lead evidence to prove the contents of exhibit P1. 12. For the reasons afore-stated, I find merit in this Regular Second Appeal. The same is allowed. The judgment and decree of the learned first appellate court dated 12th March, 1983 is set aside and that of the trial court dated 14th December, 1982 is re stored. The suit of the plaintiff is decreed in terms thereof. Parties are left to bear their own costs.