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2003 DIGILAW 1545 (PNJ)

Sham Sunder v. Lajja Ram (Dead) through LRs.

2003-11-12

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) against the judgment of reversal accepting the appeal of the plaintiff-respondent holding that the plaintiff-respondents were entitled to injunction restraining the defendants from interfering in their possession over the suit land as per details given in the heading of the plaint. 2. Facts in brief are that the plaintiff-respondents filed a Civil Suit No. 43 of 1982 on 23.1.1982 seeking a declaration to the effect that the plaintiff-respondents were owner in possession of the plot comprised in Khewat No. 428 Min. measuring 1 Kanal 10 Marlas situated at Safidon (Haryana). It was further prayed that the sale deed executed by defendant-respondent No. 7 in favour of the defendant-appellants on 11.12.1981 be declared void ab initio as it has been executed without any right or authority. It was claimed that it does not effect the rights of the plaintiff-respondents. A further prayer made was that defendant-appellants be restrained from forcibly occupying the suit land and interfering in the possession of the plaintiff-respondents. The alternative prayer was also made that the plaintiff-respondents be delivered back the possession if they were not found to be in possession or deprived of possession forcibly during the pendency of the suit. It was still further claimed that the plaintiff Lajja Ram (who is now represented by his LRs) and proforma-defendant No. 8 have been the owners in possession in equal shares of the disputed land and a decree to that effect was passed by the Civil Judge in Civil Suit titled Lajja Ram v. Bharat Bhushan decided on 4.8.1979 and the same has been upheld in appeal by the learned Additional Sessions Judge, Jind. An apprehension was expressed that defendant-respondent No. 1 through his Power of Attorney has sold the aforementioned land through the registered sale deed to defendant-appellants although he knew that the land did not belong to him. 3. In their written statement, defendant-appellants who are the venders took the stand that neither plaintiff Lajja Ram nor defendant-respondent No. 8 were owners nor in possession of the land. They further claimed that the decree dated 4.8.1979 passed by the Civil Court or the appeal decided on 5.11.1981 by the Additional District Judge is not binding on their rights as they were not parties to the afore-mentioned litigation. They further claimed that the decree dated 4.8.1979 passed by the Civil Court or the appeal decided on 5.11.1981 by the Additional District Judge is not binding on their rights as they were not parties to the afore-mentioned litigation. It was further urged that the judgment and decree on which reliance was placed by the plaintiff-respondents were not in respect of the land, which has been subject matter of sale of the sale deed dated 11.12.1981. However, they claimed that defendant-respondent No. 7 the vendor being a co-sharer in the joint Khewat No. 614 of Killa No. 421 as per Jamabandi for the year 1974-75 had every right to sell the land to the defendant-appellants. The trial Court dismissed the suit. On the basis of pleadings of the parties following issues were framed :- "1. Whether the plaintiff and the proforma defendant are co-owners of the property under dispute ? OPP. 2. Whether the plaintiff is in exclusive possession of the plot under dispute ? OPP. 3. Whether the sale-deed in favour of the defendants No. 1 and 2 registered at No. 955 on 12.12.1981 is null and void and not effective on the rights to the plaintiff and proforma defendant, if so to what effect ? OPP. 4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction. If so, what should be correct valuation ? OPD. 5. Whether the suit is not maintainable in the present form ? OPD. 6. Relief." The trial Court dismissed the suit and decided all the vital issues against plaintiff-respondents. 4. The learned Additional District Judge, Jind has reversed the judgment of the trial Court and has reached the conclusion that the land, which was subject matter of the sale deed dated 11.12.1981 is different and has got nothing to do with the land in respect of which injunction has been claimed by the plaintiff-respondents. The trial Court found that the land purchased by defendant-appellants from defendant-respondent No. 7 is different from the suit land. The plaintiff-respondents were neither held to be owner nor in possession of the suit land and the issues No. 1 and 2 were accordingly decided against the plaintiff-respondents and in favour of the defendant- appellants. The trial Court found that the land purchased by defendant-appellants from defendant-respondent No. 7 is different from the suit land. The plaintiff-respondents were neither held to be owner nor in possession of the suit land and the issues No. 1 and 2 were accordingly decided against the plaintiff-respondents and in favour of the defendant- appellants. It was further held under issue No. 3 that the sale deed executed by defendant-respondent No. 7 in favour of defendant-appellants on 11.12.1981 is not void ab initio because defendant-respondent No. 7 has been a co-sharer in Khasra No. 428. Therefore, the defendant-appellants also became co-sharer. The findings recorded on issue No. 4 were that defendant-appellants were in possession of the plot purchased by them vide registered sale deed dated 11.12.1981 and the said pot is not the land in dispute. So the issue was decided accordingly. Issue No. 5 was decided against the defendant-appellants and the suit was held to be maintainable. The suit was dismissed by the trial Court. On appeal the findings recorded by the trial Court on issues No. 1 to 4 were challenged and the learned Additional District Judge held that once the trial Court had come to the conclusion that the land purchased by defendant- appellants from defendant-respondent No. 7 is different than the suit land, then it should have recorded the finding as to whether the suit land is owned and possessed by the plaintiff-respondents. It could not have held that the land, which is covered by the sale deed Ex. P-1 dated 11.12.1981 is different than the suit land, then the plaintiff-respondents were not owner in possession. The views of the learned Additional District Judge on the afore- mentioned issues read as under :- "The approach made by the trial Court appears to be wrong in the present case. The trial Court took the view that it was for the plaintiff to prove that the land purchased by defendants No. 1 and 2 is the suit land. To this contention, I do not agree. The case of plaintiff in the plaint was that he is owner in possession of the land in suit that the defendants No. 1 and 2 purchased this very land vide their sale deed and as such they should be restrained from interfering in his possession on the land in suit. To this contention, I do not agree. The case of plaintiff in the plaint was that he is owner in possession of the land in suit that the defendants No. 1 and 2 purchased this very land vide their sale deed and as such they should be restrained from interfering in his possession on the land in suit. If the finding of the trial Court is to the effect that the land purchased by defendants is different then the land in dispute is bound to be owned and possessed by the plaintiff and if the land in suit is the same which has been purchased by the defendants then the trial court should have again recorded the finding whether it is the plaintiff who is owner in possession of the land in suit or not. In the face of finding recorded by the trial court to the effect that the land purchased by the defendants is different from the land in suit the finding of the trial court that the land in suit is not owned and possessed by the plaintiff cannot be upheld." 5. After recording the above-mentioned contradictions in the views taken by the trial Court, the learned Additional District Judge proceeded to determine as to whether the plaintiff-respondents were able to prove themselves to be owner in possession of the suit land or not. The main reliance was placed on the judgments Ex. P-6 dated 4.8.1979 passed by the Sub-Judge, Ist Class, Safidon (Haryana) and Ex. P-2, the copy of the judgment dated 5.11.1981 passed by the Additional District Judge, Jind. In a suit between the plaintiff- respondents and one Prem Parkash and other, the plaintiff-respondents were held to be in possession of a plot measuring 1 Kanal 10 Marlas comprised in Khewat No. 428 Min. which was bounded as under :- East - Land of Jamnu Ram West - Land of Sh. Kishan M.L.A. North - Land of Prem Parkash South - Road to Krishna colony 6. It was further held that although the defendant-appellants or their predecessor-in-interest, defendant-respondent No. 7 was not party to the afore-mentioned judgments and as such, it cannot operate as res judicata against them but the judgment was held to be a piece of evidence to support the case of the plaintiff-respondents that it was they who were held to be owner and in possession of the suit land. The co-sharer Prem Parkash, who contested the suit was none else than the real brother of defendant-respondent No. 7 who is the vendor of the land to defendant-appellants. With regard to possession, the learned Additional District Judge held that the defendant- appellants could not be in possession of the suit land and the evidence produced by the plaintiff-respondent is sufficient to hold that he has been in possession of the suit land. Accordingly, the suit of the plaintiff- respondents was decreed for grant of injunction and the defendant-appellants were restrained from interfering in the possession of the plaintiff- respondents over the suit land as per the details given in the heading of the plaint. Feeling aggrieved, the defendant-appellants have approached this Court by filing the instant appeal. 7. Ms. Gurinderjit Kaur, learned counsel for the defendant-appellants has argued that the sale deed dated 11.12.1981 Ex. P-1 is not void ab initio as the suit land is entirely different than the land covered by the sale deed. The learned counsel has referred to para 10 of the judgment of the trial Court to argue that the boundaries mentioned in the judgment Ex. P-2 and P-6 relied upon by the plaintiff-respondents are different than the suit land. According to the learned counsel, the findings recorded by the learned trial Court deserve to be restored. The learned counsel has further argued that defendant-respondent No. 2, who is the vendor to defendant-appellants is a co-sharer in Khasra No. 428 as per jamabandi for the year 1974-75 Ex. P-9 and he has rightly sold the land to the extent of his share vide sale deed Ex. P-1 dated 11.12.1981. 8. Mr. Y.P. Singla, learned counsel for the plaintiff-respondent has argued that the contention now put forward by the counsel for the defendant- appellants is not available to them because in para 1 of the reply of the written statement, it has been admitted that the suit land is different than the land covered by the sale deed Ex. P-1 dated 11.12.1981. The learned counsel has further drawn my attention to paras 9, 10, 11 and 12 of the judgment of the learned Additional District Judge showing analysis of the evidence produced by the plaintiff-respondent as well as the defendant- appellants. P-1 dated 11.12.1981. The learned counsel has further drawn my attention to paras 9, 10, 11 and 12 of the judgment of the learned Additional District Judge showing analysis of the evidence produced by the plaintiff-respondent as well as the defendant- appellants. The evidence produced by the defendant-appellants have failed to establish as to where the land purchased by them covered by the sale deed dated 11.12.1981 is situated. Therefore, a presumption was raised that the sale deed relates to the suit land. 9. After hearing the learned counsel for the parties and an close analysis of the judgment of the learned Additional District Judge, I have reached the conclusion that the plaintiff-respondents have been able to prove by cogent evidence that they are owner in possession of the suit land. The plaintiff- respondents have placed on file copies of judgment Ex. P-6 dated 4.8.1979 passed by the Sub-Judge, 1st Class, Safidon and a copy of the judgment Ex. P-2 passed by the Additional District Judge dated 5.11.1981 in appeal against the judgment of the Sub-Judge, 1st Class. The boundaries of the suit land as given in the plaint tallies with the boundaries mentioned in the judgment, wherein the plaintiff-respondents were held to be the owner in possession of the suit land. The co-sharer, who contested the suit was one Prem Parkash, who was none else but real brother of defendant-respondent No. 7 Braham Parkash. No evidence has been led showing any clash of interest nor it is even alleged by defendant-respondent No. 7 or defendant-appellants. Moreover, the defendant-appellants have not adduced any evidence as to where the land purchased by them was situated. Still further, the averments made in para 1 of the written statement filed by defendant-appellants makes the position further clear, which read as under : "1. That para No. 1 of the plaint is wrong and hence denied. The plaintiff and the proforma defendant are neither owners nor in possession of the suit property. The answering defendants or there vendor Brahm Parkash were not a party to the civil suit titled Lajja Ram v. Bharat Bhushan etc. alleged to be decided on 4.8.1979 nor in the appeal decided by the Additional District Judge, Jind on 5.11.1981, nor they are claiming interest in the suit property through Balwant Parkash or Bharat Bhushan etc. The answering defendants or there vendor Brahm Parkash were not a party to the civil suit titled Lajja Ram v. Bharat Bhushan etc. alleged to be decided on 4.8.1979 nor in the appeal decided by the Additional District Judge, Jind on 5.11.1981, nor they are claiming interest in the suit property through Balwant Parkash or Bharat Bhushan etc. and thus those judgments do not have any binding force against them nor can be read against them to establish the alleged title of the plaintiff in the suit property nor those judgment were concerning the suit property. Besides that the alleged boundaries recited in the title of the suit do not correspond with that of the property purchased by the defendants from Bharam Parkash." (Emphasis added). 10. I am further of the view that this Court while exercising jurisdiction under Section 100 of the Code would not enter into re-appreciation of evidence for the purposes of reaching a conclusion different than the one reached by the courts below. It is, however, open to this Court to interfere in the findings if those findings are based on no evidence or on the ground that a reasonable man would not record those findings. As such no question of law warranting interference under Section 100 of the Code has been raised. The findings of facts as noticed above are based on evidence led by the plaintiff-respondents in the form of Exs. P-2 and P-6 as well as oral testimony. Therefore, the appeal is without any substance and is liable to be dismissed. For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.