Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 390 (PNJ)

Dilbag v. Lachhman

2011-02-01

SABINA

body2011
JUDGMENT Mrs. Sabina, J.: - Plaintiffs had filed a suit for possession. 2. The case of the plaintiffs in brief was that they were joint owners in possession of the suit land along with other co-owners. The suit land had not been partitioned so far. The defendants were in unauthorized possession of the suit land and had failed to hand over the vacant possession of the suit property to the plaintiffs despite demand. Hence, the suit was filed by the plaintiffs. 3. Defendants, in their written statement, averred that the plaintiffs had not come to the court with clean hands. In fact, the plaintiffs along with other co-sharers had sold the suit land to the predecessor-in-interest of defendants No. 1 to 3 and defendant No. 4, for a consideration of ‘ 8250/- vide agreement to sell dated 17.1.1984. The entire sale consideration was paid by the vendees at the time of execution of the agreement to sell. The possession of the suit land was also handed over to the vendees and since then they were in peaceful possession of the suit land. 4. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are joint owner/co-owner of the suit land along with other co-owners and have no adverse interest against the other co-owners? OPP 2. If issue no.1 is proved in affirmative, whether the plaintiffs are entitled for the relief claimed? OPP 3. Whether the suit is not maintainable ? OPD 4. Whether the plaintiffs have no cause of action? OPD 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the plaintiffs have concealed the true and material facts from the Court? OPD 7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 8. Relief.” 5. Vide judgment and decree dated 07.9.2004, the trial court decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, the defendants preferred an appeal and the Additional District Judge, Kaithal vide judgment and decree dated 15.3.2007 allowed the appeal filed by the defendants. Consequently, the suit filed by the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs. 6. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. 7. Consequently, the suit filed by the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs. 6. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. 7. The case of the plaintiffs was that the defendants were in unauthorized possession of the suit land, whereas the case of the defendants was that they were in possession of the suit land on the basis of agreement to sell dated 17.1.1984. In order to prove the due execution of agreement to sell, defendant No.4 appeared in the witness box as DW-1 and examined Khajan Singh as DW-2, who was the attesting witness to the agreement to sell and Jogi Dass as DW-3, Deed Writer. The said witnesses deposed qua the due execution of the agreement to sell. DW-2 Khajan Singh further deposed that the possession of the suit property was handed over to the vendees at the time of execution of agreement to sell. 8. Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred as Act) reads as under:- “Part Performance- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform is part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 9. The defendants were, thus, entitled to protect their possession in view of the Section 53-A of the Act, as they had got possession of the suit property in view of execution of the agreement to sell dated 17.1.1984. Moreover, the entire sale consideration had been paid at the time of execution of the agreement to sell. The learned Additional District Judge, Ambala had, thus, rightly dismissed the suit, filed by the plaintiffs, as the defendants could not be described to be in unauthorized possession of the suit property. Rather, the defendants were in possession of the suit property on the basis of the agreement to sell dated 17.1.1984. No substantial question of law arises in this case. Dismissed. ---------0.B.S.0------------