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2010 DIGILAW 638 (HP)

MASTER NAGESHWAR CHAUHAN v. RUBI RAM

2010-03-30

SURJIT SINGH

body2010
JUDGMENT Surjit Singh, J.(Oral)-This appeal by the plaintiffs against the judgment and decree, dated 17th May, 2000, of learned first Appellate Court, i.e. the Court of District Judge, whereby setting aside the decree of the trial Court, suit of the plaintiffs was dismissed, has been admitted on the following substantial questions of law: “1. Whether a person who comes in lawful possession of property in part performance of agreement of sale is entitled to protect his possession till the time he is dispossessed therefrom in due process of law? 2. Whether an agreement of sale with respect to purchase of immoveable property entered on behalf of minors by their father is illegal and contrary to Section 11 of the Contract Act as held by the First Appellate Court?” 2. Facts relevant for deciding the appeal lie in a narrow compass. Bholu, the father of defendant-respondent Rubi Ram, was owner in possession of land measuring 2770 sq. metres, bearing Khasra Nos.88, 93 and 98, situate in Chak Gharshal, Tehsil Chirgaon, District Shimla, hereinafter called suit land. On 29th June, 1991, he executed writing Ex. PA in favour of the present plaintiffs, whereby he agreed to sell the suit land to them for a sum of Rs.7,500/-and after receiving the entire amount of consideration delivered the possession to them. Ever since the plaintiffs had been in possession of the suit land. They filed a suit in the year 1997 for permanent prohibitory injunction, seeking to restrain the defendant-respondent Rubi Ram, who, on the death of said Bholu, inherited Bholu Ram’s estate, from interfering in their possession. It was alleged that the defendant-respondent had been threatening to forcibly oust the plaintiffs. 3. Learned trial Court concluded, after recording the evidence of both the sides, that the plaintiffs were in possession and the defendant-respondent threatened to interfere with their possession. Issues based on the preliminary objections of the defendant were found against them. Consequently, the suit was decreed. 4. Defendant-respondent filed appeal against the decree of the trial Court. Learned Additional District Judge accepted the appeal, reversed the decree of the trial Court and dismissed the suit, holding that agreement Ex. PA was void, as the plaintiffs-appellants were minors at the time of its execution. It was also held that the document, on which the claim of the plaintiffs was based, was shrouded by suspicion. Learned Additional District Judge accepted the appeal, reversed the decree of the trial Court and dismissed the suit, holding that agreement Ex. PA was void, as the plaintiffs-appellants were minors at the time of its execution. It was also held that the document, on which the claim of the plaintiffs was based, was shrouded by suspicion. Further, it was held that the plaintiffs were not in possession. 5. I have heard the learned counsel for the parties and gone through the evidence. 6. Both the substantial questions of law are interlinked. So, I proceed to deal with both of them together. 7. It is submitted by the learned counsel for the plaintiffs-appellants that an agreement to sell in favour of a minor is a valid agreement, inasmuch as such an agreement is for the benefit of the minor, especially when the entire sale consideration of the property, agreed to be sold, is paid, at the time of the execution of the agreement. The submission is contrary to the settled position of law. An agreement to sell in favour of a minor, even when the entire sale consideration stands paid is void, in view of the provision of Section 11 of the Contract Act and also on account of the fact that the other side cannot enforce such an agreement, because of lack of mutuality of enforcement of agreement. Such an agreement can be entered into on behalf of the minors by their guardian. But, in the present case the guardian of the minors, namely PW-1 Devinder Chauhan, nowhere stated that he entered into the agreement on behalf of the minors, acting as their guardian, nor is there any mention like that in agreement Ex. PA. 8. Next submission made by the learned counsel for the plaintiffs-appellants is that even if the agreement be void, on account of the bar contained in Section 11 of the Contract Act, the plaintiffs being in settled possession, pursuant to agreement Ex. PA, have the right to protect their possession, until they are dispossessed by due process of law. In support of this submission, reliance is placed on a judgment of the Supreme Court in Rame Gowda (Dead) by LRs versus M. Varadappa Naidu (Dead) by LRs and another, (2004) 1 SCC 769. 9. PA, have the right to protect their possession, until they are dispossessed by due process of law. In support of this submission, reliance is placed on a judgment of the Supreme Court in Rame Gowda (Dead) by LRs versus M. Varadappa Naidu (Dead) by LRs and another, (2004) 1 SCC 769. 9. Hon’ble Supreme Court, relying upon a number of its earlier judgments, has held that a trespasser in settled possession cannot be dispossessed, even by a true owner, except by due process of law. 10. In the present case, from the evidence on record, it appears that writing Ex. PA had been executed by Bholu, the father of defendant-respondent, and also by the defendant-respondent himself and at the time of the execution of the said agreement possession had been delivered to the plaintiffs-appellants. 11. PW-1 Devinder Chauhan, the father of the plaintiffs-appellants, while in the witness-box, very categorically stated that the writing was thumb-impressed by Bholu, the father of the defendant-respondent, and also signed by the defendant-respondent in his presence. No cross-examination was directed qua this part of the testimony of PW-1 Devinder Chauhan. It is recited in Ex. PA that the possession stood delivered to the plaintiffs-appellants. 12. In his own testimony, while appearing as PW-1, defendant-respondent Rubi Ram not only did not deny that his father Bholu had executed writing Ex. PA, but impliedly admitted its execution, when in the examination-in-chief itself he stated that the writing was prepared at Rohru and in the cross-examination he did not specifically deny the suggestion that his father had executed agreement Ex. PA and received the sale consideration of Rs.7,500/- and given the land to the plaintiffs-appellants. He simply expressed ignorance. Had it not been a fact, he would have very categorically denied the suggestion. His conduct, thus, suggests that possession of the land had been delivered to the plaintiffs-appellants. 13. In view of the abovestated position, both the substantial questions of law are answered in favour of the plaintiffs-appellants and it is also held that the plaintiffs appellants are in settled possession of the suit land and, hence, entitled to the relief of permanent prohibitory injunction, as prayed for by them. In the result, appeal is accepted, judgment and decree of the first Appellate Court are set aside and the judgment and decree of the trial Court are restored. 14. Appeal stands disposed of.