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2010 DIGILAW 429 (PNJ)

Murti Thakur Ji Mandir Thakur Dwara v. Bhullan

2010-01-18

MAHESH GROVER

body2010
Judgment Mahesh Grover, J. 1. C. M. NO.11636-C of 2009 the application is allowed as prayed for. 2. R. S. A. NO.3802 of 2009and C. M. No.11637-C of 2009 This Regular Second appeal is directed against judgments and decrees dated 13.8.2008 and 19.8.2009 passed respectively by the Additional Civil Judge (Senior Division), Panipat (hereinafter described as `the trial Court) and the Additional District Judge, panipat (referred to hereinafter as `the first appellate Court) whereby the suit and the appeal of the plaintiffs-appellants have been dismissed. 3. The appellants had filed a suit for declaration pleading that Murti Thakur Ji, mandir Thakur Dwara at village Barana is possessed of certain properties which were being managed by its Mahants. A dispute broke out earlier regarding the management of the properties by the said Mahants and the same was decided by the Collector, Karnal to the extent that the properties will vest in Murti thakur Ji and their management will be done by the elected body of the village voters, i. e. , Gram Panchayat and that all beneficiaries and worshippers were entitled to participate in the management and for betterment of the religious institution. Thereafter, there has been no dispute regarding the appointment of trustees. According to the appellants, the religious institution is owner and in possession of 647 kanals of agricultural land which has been mutated in the name of Mandir Thakurji vide mutation no.1508 by the Assistant Collector IInd grade as per the orders of the Deputy Commissioner, Karnal in case No.93 of 1985-86 decided on 27.11.1986. The appellants had averred that earlier to that, a suit came to be filed by Chelas of Dharam Dass regarding some property (measuring 112 kanals 18 marlas of land ) belonging to Mandir Thakurji to whom the claim had been laid by them and that suit was dismissed on 24.10.1981, but in appeal, the matter was compromised and a decree was obtained by the said chelas, namely, Ram Dass, Baru Dass and Ram Narain. The revenue entries were changed in their names on the basis of this compromise qua the said property to the extent of 1/3rd share each vide mutation no.1907. The revenue entries were changed in their names on the basis of this compromise qua the said property to the extent of 1/3rd share each vide mutation no.1907. It was alleged that Ram narain Dass sold 55 kanals and 12 marlas of land out of the land so mutated in his name vide sale deed dated 9.10.1998 in favour of defendant-respondent no.1, namely, Bhullan, for a consideration of Rs.4,70,000/-, whereas Ram Dass alienated 37 kanals 13 marlas of land vide sale deed dated 2.2.1999 in favour of defendant- respondent no.2, ved Parkash, for a consideration of Rs.4,90,000/-. It was pleaded that these sale deeds as well as mutations sanctioned on their basis are null and void as ram Narain Dass and Ram Dass had no right to sell the property of Mandir thakurji. The mortgage created qua some of the land in dispute had also been challenged by the appellants. In addition, the appellants had also challenged mutation no.1340 sanctioned on 26.12.1972 on the basis of the registered will of Baba Dharam Dass being illegal, null and void. Gram Panchayat, Barana, who was impleaded as defendant no.1 in the suit, appeared and filed a separate written statement pleading that the land in dispute is not covered by mutation no.1508 and denied all other averments of the appellants. 4. Ram Narain Dass, Ram Dass, Bhullan, Ved Parkash and legal heirs of baru Dass, who were arrayed as defendant nos.2 to 12, filed a joint written statement, resisting the suit, who, apart from taking objections regarding its maintainability etc. , pleaded that there was no dispute regarding 647 kanals of land which was subject-matter of mutation no.1508 in favour of Mandir Thakurji, but defended mutation no.1907 sanctioned in favour of Ram Dass, Ram Narain Dass and Baru Dass. It was pleaded that the land covered by mutation no.1907 belonged to Baba Dharam Dass and not to Mandir Thakurji. The decree passed in favour of Ram Dass, Ram Narain dass and Baru Dass was stated to be not collusive and it was averred that the property covered by the said decree was distinct and had been bifurcated and segregated from the property of the Mandir Thakurji. It was further averred that the land in dispute was firstly mutated in favour of Dharam Dass and subsequently in favour of his Chelas, namely, Ram Narain Dass, Ram Dass and Baru dass as per law. It was further averred that the land in dispute was firstly mutated in favour of Dharam Dass and subsequently in favour of his Chelas, namely, Ram Narain Dass, Ram Dass and Baru dass as per law. The alienation and mortgage of some of the property in dispute was also stated to be justified. 1. Whether the mutation No.1340 dated 26.12.1972 is illegal?opp 2. Whether the sale deeds dated 9.10.1988 and 2.2.1999 and mutation no.1943 are null and void?opp 3. Whether the suit is not maintainable?opd 4. Whether the suit is bad for nonjoinder of necessary parties?opd 5. Whether the suit is time barred?opd 6. Whether proper court fees has not been affixed?opd 7. Whether the suit is barred under Sec.92 CPC?opd 8. Relief. 5. After appraisal of the entire evidence on record, the trial Court as well as the first appellate Court concluded that the property in question did not belong to Mandir Thakurji, whereas 647 kanals of land was undisputedly owned by it. It was further concluded that the property in question was standing in the name of Dharam Dass in his personal capacity and which was never challenged by Mandir Thakurji and which,later on, devolved upon by Ram Narain Dass, Ram Dass and Baru Dass and that the same was rightfully alienated by them. Consequently, the suit and the appeal of the appellants were dismissed. 6. Feeling dis-satisfied with the findings of the Courts below, the appellants, who are residents of the village, have filed the instant appeal. Learned counsel for the appellants have contended that the suit land belonged to Mandir Thakurji and Baba Dharam Dass had no concern with the same and consequently, his Chelas, namely, Ram Narain Dass, Ram Dass and Baru Dass derived no right qua it. He argued that the findings recorded by the Courts below are perverse and deserve to be set aside as there was sufficient evidence on record to prove that Mandir Thakurji was the owner of the suit property. 7. I have thoughtfully considered the contentions of the learned counsel for the appellants and have perused the lower Courts records which was summoned. 8. The revenue record speaks in favour of the respondents. Baba dharam Dass died in the year 1972 and mutation no.1340 was sanctioned on the basis of a registered will left by him. 7. I have thoughtfully considered the contentions of the learned counsel for the appellants and have perused the lower Courts records which was summoned. 8. The revenue record speaks in favour of the respondents. Baba dharam Dass died in the year 1972 and mutation no.1340 was sanctioned on the basis of a registered will left by him. Thereafter, the suit property which was his personal one, devolved upon his rightful Chelas which was never questioned ever since. Later on, the same was mutated in favour of Ram Narain Dass, Ram dass and Baru Dass vide mutation no.1907. It was established that the land comprised in Khewat Nos.192, 208 and 209 measuring 647 kanals was mutated in favour of Mandir Thakurji through mohtmim Baru dass etc. vide mutation no.1508 and the land in dispute was distinct from this land and was under the ownership of Dharam Dass in his individual capacity and the same devolved upon his three Chelas, namely, Ram narain Dass, Ram Dass and Baru Dass. These findings of fact have been recorded on the basis of the revenue record and no material has been shown to this Court from where it can be inferred that the same are inconsistent with it so as to hold that the conclusion arrived at by the Courts below is erroneous. 9. No question of law has been shown to have arisen for consideration of this Court in the instant appeal which is totally devoid of any merit and the same is dismissed. 10. C. M. NO.11637-C of 2009 which has been moved for staying the operation of the impugned judgments is also dismissed in view of the above. respondent. 11. Nand Gopal filed suit for recovery of Rs.40000/- i. e Rs.30000/- as principal amount and Rs.10000/- as interest thereon alleging that the defendant borrowed Rs.30000/- from the plaintiff on 03.07.2004 and agreed to repay the same with interest thereon at the rate of 1.50% per month and executed necessary pro-note and receipt for the same, but the defendant failed to repay the aforesaid amount and interest. 12. 12. The defendant alleged that he never borrowed any money from the plaintiff and in fact, defendants mother had been purchasing grocery items from Sham Lal, scribe of the pro-note and receipt, and said Sham Lal had obtained thumb impressions and signatures of the defendant on certain documents on the pretext that the same were required for being submitted before Sales Tax and Income Tax Authorities in connection with sale of grocery articles. Learned Additional Civil Judge (Senior Division), Narwana vide judgment and decree dated 20.03.2009 dismissed the suit. However, in appeal preferred by the plaintiff, learned District Judge, Jind vide impugned judgment and decree dated 10.08.2009 partly allowed the appeal and partly decreed the suit of the plaintiff with cost for recovery of Rs.30000/- with interest thereon at the rate of 12% per annum from the date of filing of suit till date of decree of appellate Court and future interest at the rate of 6% per annum till recovery. Feeling aggrieved, the defendant has filed the instant second appeal. 13. I have heard learned counsel for the appellant and perused the case file. 14. Following substantial questions of law are said to be arising in the instant second appeal as mentioned in paragraph 7 of the appeal:- " (i) Whether the execution of pronote Ex. P-1 and receipt Ex. P-2 has been or has not been proved? (ii) Whether the testimony of PW-1 can be believed and relied upon? (iii) Whether the judgment and decree passed by the Learned First appellate Courts are perverse? (iv) Whether the Ld. First Appellate Courts has misread the evidence on record while reversing the judgment and decree passed by the Ld. Trial Court?" 15. However, perusal of the aforesaid questions reveals that all the said questions are questions of facts and not questions of law much less substantial questions of law. Second appeal cant be entertained on question of facts. It could be entertained only on substantial questions of law. In the instant case, however, no substantial question of law arises for determination. Learned counsel for the appellant vehemently contended that the pronote in question is undated and, therefore, no presumption of consideration can be raised under Sec.118 of the Negotiable Instruments Act, 1881. The contention cannot be accepted. The question of presumption regarding consideration would also be a question of fact as to whether the consideration was paid or not. Learned counsel for the appellant vehemently contended that the pronote in question is undated and, therefore, no presumption of consideration can be raised under Sec.118 of the Negotiable Instruments Act, 1881. The contention cannot be accepted. The question of presumption regarding consideration would also be a question of fact as to whether the consideration was paid or not. Moreover, no such question of law has even would raised by the appellant in paragraph 7 of the grounds of appeal. In addition to the aforesaid, the aforesaid contention has no foundation inasmuch as pronote-cum-receipt is a single document and date is written at the bottom thereof against the relevant column. In the printed form of pronote-cum-receipt as shown by counsel for the appellant, there is no column for date in the first part i. e pronote and there is only one column for date in the entire document and the date has been written therein. Consequently, it cannot be said that the pronote is undated. Moreover, the defendant even in his written statement admitted that his thumb impression and signatures had been obtained on certain documents by Sham Lal on 03.07.2004. Consequently, the aforesaid contention raised by counsel for the appellant has no substance and the finding of the appellate Court against the defendant-appellant is well-founded and well-reasoned and does not call for any interference in second appeal. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed in limine. court was not challenged by the appellants or the vendor, before first appellate Court. 16. The only ground for denial of the relief for specific performance by learned trial Court was, that the vendor was not the owner of the property on the date of agreement to sell as he acquired the title only subsequently, therefore, the agreement was not specifically enforceable. 17. This finding of the learned trial Court was rightly set aside. The decree passed by the learned lower appellate Court is in consonance with Sec.13 (1) (a)of the Specific Relief Act, 1963, which reads as under: - "13. 17. This finding of the learned trial Court was rightly set aside. The decree passed by the learned lower appellate Court is in consonance with Sec.13 (1) (a)of the Specific Relief Act, 1963, which reads as under: - "13. Rights of purchaser or lessee against person with no title or imperfect title.- (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:- (a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;" 18 The first substantial question of law, therefore, does not arise for consideration. 19. For the reasons recorded above, the second substantial question of law is also answered against the appellants, as in view of section 13 (1) (a) of the Specific Relief Act, on acquisition of the title in the property subsequently, the vendee can enforce the contract of specific performance. 20. The learned counsel for the appellants, on the third substantial question of law, contended, that the specific performance of contract was likely to cause hardship to the appellants, which they could not foresee. Whereas non-performance of the contract was not to cause any hardship to plaintiff/respondent No.1, as the learned trial Court had decreed the suit for recovery of earnest money along with interest. Therefore, the decree passed by the learned lower appellate Court, is violative of section 20 of the Specific Relief Act. 21. It was also contended by the learned counsel for the appellants, that the contract was inequitable. 22. This plea of the learned counsel for the appellants again deserves to be noticed to be rejected. The appellants cannot be said to have suffered any hardship, as the sale deed in their favour was subsequent to agreement to sell in favour of plaintiff/respondent No.1. It cannot be said that the appellants could not foresee the hardship at that time, as admittedly they are the real brothers of the vendor. It cannot be said, that appellants had no knowledge of the agreement to sell. It cannot be said that the appellants could not foresee the hardship at that time, as admittedly they are the real brothers of the vendor. It cannot be said, that appellants had no knowledge of the agreement to sell. It is for this reason, that the plea of "bona fide purchaser" was not raised, either before the learned trial Court or the learned lower appellate Court, though specifically impleaded as party, with an averment that the transaction of sale in their favour was a sham transaction, to defeat the right of plaintiff/respondent. 23. The third substantial question of law is, therefore, also answered against the appellants, as no ground to deny the specific performance in terms of Sec.20 of the Specific Relief Act is made out in the case. 24. The learned counsel for the appellants also contended, that in the present case, the plaintiff/respondent No.1 failed to rebut the evidence of the appellants, of bona fide purchasers in good faith without notice of earlier contract, as there was no averment in this regard, qua the knowledge of earlier contract. 25. In support of this contention, the learned counsel for the appellants placed reliance on the judgment of the Honble Supreme Court in B. Rajamani Vs. Mrs. Azhar Sultana and Ors. , 2005 (2) Civil Court cases 696. 26. This contention of the learned counsel for the appellants is totally mis-conceived. The specific stand taken by plaintiff/respondent no.1 was, that the transaction, of sale in favour of the appellants was sham transaction, to defeat the rights of the plaintiff. It was specifically pleaded, that the appellants are real brothers of the vendor and the sale deed in their favour could not affect the rights of the plaintiff to seek the relief of specific performance. 27. The appellants even did not claim an issue of "bona fide purchasers" for consideration. It cannot be said, that appellants were bona fide purchasers for consideration without notice, as contended. 28. All the substantial questions of law raised are answered against the appellants. 29. Finding no merit in this appeal, it is ordered to be dismissed in limine.