Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 570 (PNJ)

Ude Singh v. Ram Chander

2008-02-27

PERMOD KOHLI

body2008
JUDGMENT Permod Kohli, J. (Oral) - Heard. Following substantial questions of law arise in the present appeal : 1. Whether the plaintiff could claim the possession of the property from the defendants in view of the execution of the sale deed though unregistered accompanied with delivery of possession and receipt of entire sale consideration. 2. Whether the entry of possession in jamabandi with regard to the constructed portion can raise a presumption of possession. Appeal is admitted. In view of the above substantial questions of law appeal is heard finally. 2. Respondent plaintiff filed a suit for possession against the appellants here in respect of land measuring 7 Marlas Khewat No. 243, Khata No. 450 Khasra No. 83/13 situated in village Aterna, Teh. and Distt. Sonepat. It was alleged in the plaint that the father of the plaintiff namely Dalu Ram was allotted the suit property and after his death the plaintiff became the owner of the plot on 15.09.1975. Defendants attempted to take forcible possession and plaintiff filed a suit for permanent injunction and during the pendency of the suit defendants got the possession forcibly on 03.11.76, thus suit for permanent injunction became infructuous. 3. Defendants, however, contended that the suit plot was purchased by the defendants from the father of the plaintiff vide document dated 05.07.1963 for Rs. 500/- (Receipt Ex.D2) it was also pleaded that the possession of the property was handed over to the defendants in the presence of the witnesses. The defendants also pleaded that the suit is not within limitation. Trial Court framed following issues : 1. Whether the plaintiff is not owner of plot No. 83/13 as detailed in para 1 of the plaint ? If so, whether Surji Girwar, Bhartu, Dal Chand and Bhanwar Singh purchased the said plot on 05.07.1963 from the father of the plaintiff ? OPD 2. Whether the defendants have taken illegal possession of the above said plot from the plaintiff ? OPD 2a. Whether the suit of the plaintiff is within limitation ? OPD (Receipt on 27.07.78) 3. Relief. 4. Plaintiff placed on record copies of jamabandies Ex. P1 to P5 for the period from 1955-56 to 1973-74 wherein Dalu Ram was shown as the owner of the suit property. Defendants produced Udai Singh (DW1), Ram Chand (DW2), Ranjit Singh(DW3), Har Kishan (DW4). All these witnesses deposed that late Dalu Ram executed sale deed Ex. Relief. 4. Plaintiff placed on record copies of jamabandies Ex. P1 to P5 for the period from 1955-56 to 1973-74 wherein Dalu Ram was shown as the owner of the suit property. Defendants produced Udai Singh (DW1), Ram Chand (DW2), Ranjit Singh(DW3), Har Kishan (DW4). All these witnesses deposed that late Dalu Ram executed sale deed Ex. D2 and sold suit plot to the defendants for consideration of Rs. 500/- and the possession of the property was also delivered to them. 5. On the basis of the evidence, Trial Court came to the conclusion that though father of the plaintiff was the owner but defendants are in actual possession since 05.07.63, the date of execution of document Ex. D2. The trial Court also held that since the possession was delivered in the year 1963 and the suit has been instituted in the year 1977 beyond 12 years the suit is barred by time and dismissed the same vide judgment and decree dated 29.07.78 Plaintiff preferred an appeal in the Court of Additional Sessions Judge, Sonepat. The Appellate Court vide impugned judgment and decree dated 19.02.80 set aside the judgment and decree of the Trial Court and decreed the suit filed by the respondent plaintiff for possession. The lower Appellate Court on the basis of the evidence returned a finding that the Ex.D2 is inadmissible in evidence as the property was sold for a consideration of more than Rs. 100/- and was compulsorily registrable. 6. The lower Appellate Court while relying upon the entries in the Jamabandi also held that the father of the plaintiff was shown in possession continuously from 1955-56 to 1973-74 and the jamabandi carry presumption of truthness. It was accordingly held that defendants are in illegal possession of the suit property and passed the decree for possession against the defendants appellants herein. 7. Nobody has appeared on behalf of the respondents. Learned counsel appearing for the appellant has argued that the entries in jamabandi carry presumption with regard to the agricultural property and not where the construction has been made. His further contention is that the document Ex.D2 even if may not confer title but it is sufficient to establish possession and right to possess. 8. It is admitted case of the parties that the defendant appellants are in possession of the suit property. Appellants have successfully established the execution of the document Ex.D2 dated 05.07.63. His further contention is that the document Ex.D2 even if may not confer title but it is sufficient to establish possession and right to possess. 8. It is admitted case of the parties that the defendant appellants are in possession of the suit property. Appellants have successfully established the execution of the document Ex.D2 dated 05.07.63. All the witnesses produced by defendants/appellants have specifically deposed that the possession of the property was delivered to the defendants by Late Dalu Ram father of the plaintiff at the time of the execution of the receipt. This fact remained unrebuted. Lower Appellate Court has declared the plaintiffs father to be in possession upto 1973-74 merely on the basis of the entries in jamabandi no evidence whatsoever was led by the plaintiff to establish the actual physical possession of his father or of the plaintiff during the relevant period of jamabandies. Rather the case of the plaintiff was that he was dispossessed on 03.11.76, therefore, he admitted that from 1976 onwards defendants are in possession. In the previous suit filed for permanent injunction the plaintiff simply made application that he was dispossessed and later on withdrew the suit. 9. There is no finding by any Court that the plaintiff was dispossessed on 03.11.76. In absence of there being any finding of dispossession and in view of the evidence led by the defendants that the defendants were put in possession on 05.07.63 the Lower Appellate Court has committed glaring illegality in declaring the possession of the defendants as unauthorised. The document Ex. D2 has not been denied by the plaintiff nor there is any evidence to rebut the evidence led by the defendants to prove the document. The defendants paid the entire sale consideration and also obtained the possession of the disputed plot from the father of plaintiff. Even if no title on the basis of unregistered sale deed/receipt can be conferred, the plaintiff is stopped from reclaiming possession on the ground that there is no valid sale deed. Rule of estoppel contained in Section 115 of the Evidence Act is clearly attracted in the present Act. 10. I am fortified with a judgment of Full Bench of J&K reported as Ghulam Qadir and another v. Ghulam Husain, A.I.R 1973 Jammu and Kashmir 11. Rule of estoppel contained in Section 115 of the Evidence Act is clearly attracted in the present Act. 10. I am fortified with a judgment of Full Bench of J&K reported as Ghulam Qadir and another v. Ghulam Husain, A.I.R 1973 Jammu and Kashmir 11. In this case, an agreement to sell was executed between the parties and full consideration of the sale amount as also possession delivered to the vendee. Consequently, the vendor repudiated the sale and asked for recovery of possession. Honble the Full Bench in the case aforesaid considered the issue and held as under : "For the reasons we find that even though the possession of the defendant may be permissive, since the plaintiff has received the entire consideration money and allowed the position to be changed to the prejudice of the defendant, he will be estopped from repudiating the sale transaction and recovering possession from the defendant. On this ground alone, in our opinion, the defendant is entitled to succeed." 11. In view of the above circumstances the judgment of the Lower Appellate Court is not only contrary to the evidence on record but also liable to be-set aside on the above two substantial questions of law : 1. That the presumption of entries in jamabandi will not apply insofar the constructed portion over the land is concerned. 2. The plaintiff is estopped from reclaiming the possession after the receipt of the entire sale consideration and delivery of possession notwithstanding the fact that there was no registered document conveying the title. No order as to cost. Appeal allowed.