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2012 DIGILAW 457 (KAR)

Samrathmal v. Basavarajappa

2012-06-01

H.S.KEMPANNA

body2012
Judgment 1. This appeal is by the plaintiff challenging the judgment and decree of the trial Court dismissing his suit filed for possession and for mesne profits. 2. For the sake of convenience, the parties in this appeal would be referred to by their rankings as they are arrayed in the suit before the Court below. 3. The plaintiff instituted suit against the defendant seeking for possession of the suit schedule property and for mesne profits from the date of deposit of the mortgage amount with costs. 4. The suit schedule property is the land measuring 6 acres 8 guntas, 5 acres 27 guntas, 15 acres 12 guntas, in all 27 acres 7 guntas situated in Sy. Nos. 17, 18 and 19 respectively of Alonohally Mandal Panchayath, Chamalapura Village, Hampapura Hobli, H.D. Kote Taluk, Mysore District and land measuring 15 acres 28 guntas situated in Sy.Nos.10 and 15 of Chamalapur Village, Hampapura Hobli, H.D. Kote Taluk, Mysore District morefully described in the schedule appended to the plaint. (Herein after referred to as 'Suit Schedule Property' for short) It is the case of the plaintiff that the suit schedule property are agricultural lands. He acquired an extent of 27 acres 7 guntas by virtue of the order passed by the Land Tribunal, H.D. Kote in pursuance of which occupancy rights had been registered in his name. It is his further case that the other extent of 15 acres 28 guntas had been purchased by him from one Vanakalusetty alias Javaresetty under a registered sale deed and as such, he is absolute owner of the entire extent of suit schedule property measuring 42 acres 33 guntas situated at Chamalapura Village in H.D. Kote Taluk. It is his further case that the defendant is permanent resident of Hampapura Hobli, H.D. Kote Taluk and he is his close friend. He was supporting him in cultivating schedule land. He is also a businessman at Mysore city and his family members are residing at Mysore. After some time, the plaintiff shifted to Chamalapura and was cultivating the entire lands. It is his further case that as he was unable to look-after the schedule land on account of his advanced age, he mortgaged the suit property in favour of the defendant and received a mortgage amount of Rs.2,00,000/- by mortgaging it for a period of five years. It is his further case that as he was unable to look-after the schedule land on account of his advanced age, he mortgaged the suit property in favour of the defendant and received a mortgage amount of Rs.2,00,000/- by mortgaging it for a period of five years. He handed over the possession of the entire suit schedule lands to the defendant in April, 1990. The mortgage period expired long back. Thereafter, he made several requests and demands to the defendant to receive the Mortgage amount of Rs.2,00,000/- and to hand over the suit schedule property in his favour. But the defendant did not comply with the same. Finally, he was constrained to issue a legal notice dated 01.08.1999 calling upon the defendant to receive the Mortgage amount of Rs.2,00,000/- and to hand over the suit schedule property to him, to which the defendant sent untenable reply. It is his further case that the suit schedule property is a fertile land. The defendant fraudulently and by misrepresenting the facts got the signatures of the plaintiff on Blank Stamp Papers which he believed to be a mortgage deed. But the plaintiff has not executed any documents in favour of the defendant. The plaintiff is ready to pay the mortgage amount of Rs.2,00,000/- to the defendant. He is also entitle for mesne profits in respect of the suit schedule lands. It is also his case that the defendant has cut-off the standing trees, the value of which is Rs.25,000/-, which amount he is also entitled to from the defendant and to forfeit the said amount in the mortgage amount due by him to the defendant. Therefore he filed the suit for the relief of possession and mesne profits from the defendant. After service of suit summons the defendant appeared and contested the suit by filing statement of objections. It was contended that the suit is not maintainable as no particulars are given in the plaint as required under the provisions of Order 34 of CPC and under Form No.46 in Appendix-A of the CPC. It was further contended that the suit is liable to be dismissed on the ground that the suit document i.e., mortgage deed is not produced before the Court and therefore, by virtue of the Order 7 Rule 41, the suit is liable to be rejected. It was further contended that the suit is liable to be dismissed on the ground that the suit document i.e., mortgage deed is not produced before the Court and therefore, by virtue of the Order 7 Rule 41, the suit is liable to be rejected. It was also contended that the plaintiff has not stated the date on which he was granted occupancy rights and the date on which he got Form No.10. Therefore, he has not given the particulars as to how he is claiming the ownership. He denied the plaintiff having mortgaged the suit property in his favour specifically. He also denied he having received the mortgage amount of Rs.2 lakhs and the period of mortgage of five years. It was contended that there is no mortgage deed either in law or on facts. It was further contended that they have given a tenable reply to the legal notice issued by the plaintiff. The same is not produced by the plaintiff to the Court. He has also not produced the legal notice issued. It was further contended that the plaintiff has not stated whether the alleged mortgage deed is registered or not. If it were not to be a registered mortgage deed, it has no existence in the eye of law as a registered mortgage deed. It was further contended that the plaintiff has suppressed the material facts inasmuch as the suit schedule land being fertile land is not true. The allegation that the defendant took the signatures of the plaintiff on the blank stamp papers and he signed on blank stamp papers believing the same as mortgage deed is false. There is no mortgage at all and therefore, the plaintiff is not entitled to any mesne profits. It was further contended that the allegation that he has cut the standing trees and the value of the same is also Rs.25,000/- is false and no tree has been cut and therefore, the plaintiff is not entitled to the said amount as claimed in his plaint. It was also further contended that the plaintiff has not paid the actual court fee and unless and until he pays the said court fee, the suit is not maintainable and required to be rejected. It was further contended that the plaintiff is permanently residing at Mysore. He is unable to look after the land and he was in search of a buyer. It was further contended that the plaintiff is permanently residing at Mysore. He is unable to look after the land and he was in search of a buyer. The allegation that the defendant is close friend of the plaintiff is false. The allegation that the plaintiff was cultivating the land at Chamalapura and that he shifted to Chamalapura is also false. The plaintiff is residing at Mysore and he is a moneylender. The plaintiff is engaged in money lending business by getting the articles pledged. It is further contended that the plaintiff is wordly-wise and a rich man. He was not in a position to cultivate the land, as he never tilled the same. It was further contended that the plaintiff under one agreement agreeing to sell the property had received Rs.1 lakh, under the second agreement had received Rs.25,000/-, under the third agreement dated 16.3.1991 the plaintiff has acknowledged having received Rs.1,25,000/- and further received a sum of Rs.25,000/-, in total the plaintiff has received a sum of Rs.1,50,000/- as on 16.3.1991 by agreeing to sell the land in question for a total consideration of Rs.2,50,000/-. When the third agreement came into existence on 16.3.1991, the plaintiff took away previous two agreements. Therefore, on 16.3.1991 the plaintiff had received a sum of Rs.1,50,000/- and the balance of the sale consideration due to the plaintiff was Rs.1 lakh. Further, the plaintiff was to incur some expenditure in connection with the tenancy case and was to discharge his loan raised from PLD Bank. Therefore, he executed fourth agreement on 27.5.1993 agreeing to sell the suit schedule property for a total consideration of Rs.2,86,000/- and on that day i.e., on 27.5.1993 took further sum of Rs.1 lakh and he acknowledged the same under the agreement dated 27.5.1993 for having received Rs.2,50,000/- in all and insofar as the balance amount of Rs.36,000/, the plaintiff directed the defendant to discharge the PLD bank loan and also to clear the amount to be paid to the Land Tribunal in connection with grant of occupancy rights. It was further contended that the defendant discharged the entire loan amount payable to the PLD Bank and when he wanted to pay the amount to the Land Tribunal, the Land Tribunal did not receive the amount on the ground that the suit is pending. It was further contended that the defendant discharged the entire loan amount payable to the PLD Bank and when he wanted to pay the amount to the Land Tribunal, the Land Tribunal did not receive the amount on the ground that the suit is pending. He is always ready and willing to discharge the amount due to the Land Tribunal or pay the balance to the plaintiff. He was always ready and willing to perform his part of contract to get the sale deed registered and is willing to pay whatever amount had to be paid to the plaintiff and in fact he has already paid a sum of Rs.2,50,000/- and discharged the loan payable by the plaintiff to the PLD Bank. The remaining amount will be paid or will be deposited before the Court or before the Land Tribunal as per the direction of the Hon'ble this Court. It was further contended that the defendant was put in possession of the suit schedule land in question when the first agreement came into existence on 27.10.1990 and right from the said date, the defendant is in possession of the suit schedule property pursuant to the agreement to sell and in part performance of the contract to sell. RTC stands in the name of the defendant. He has the Xerox copy of the agreement dated 16.3.1991 and he does not have the Xerox copy of the earlier agreements and all other earlier agreements and all the original agreements up to 16.3.1991 have been given to the custody of the plaintiff when the fourth agreement came into existence on 27.5.1993. He has produced the original agreement on 27.3.1993 and this original agreement dated 27.3.1993 has been executed not only by the plaintiff, but also by his two sons Mulchand and Kushalraj. It was further contended that he got two borewell sunk at a huge cost of Rs.3 lakhs, which amount includes the amount of pipes and other expenses. Two electric pump sets have been fixed. He has improved the suit land by spending lakhs of rupees. He has fenced the suit land in question and has planted 1000 coconut saplings. These acts have been done by him pursuant to the agreement to sell and in part performance of the contract to sell. It was further contended that the defendant is ever ready and willing to perform his part of the contract. He has fenced the suit land in question and has planted 1000 coconut saplings. These acts have been done by him pursuant to the agreement to sell and in part performance of the contract to sell. It was further contended that the defendant is ever ready and willing to perform his part of the contract. He is protected by Section 53 A of the Property of Transfer Act. The defendant viz. the transferee has performed 99% of his obligations under the contract and he is willing to perform the remaining part of his contract and he is ready and willing to get the sale deed registered at his expense. The defendant in part performance of the contract has taken possession of the property in the year 1990 when the first agreement came into existence and he is continued to be in possession of the property in question. He being in possession of the property has been confirmed under the agreement dated 27.5.1993 by the plaintiff and his two sons. Thereafter, the plaintiff is debarred from enforcing the claim for being in possession of the suit schedule property. Accordingly, he sought for dismissal of the suit. 5. On the basis of the above pleadings, the trial Court framed the following issues:- 1) Whether the plaintiff proves that he has mortgaged the suit schedule lands on April 1990 The amount in deposit is ordered to be transferred to the Tribunal for disbursement received an amount of Rs.2,00,000.00 from the defendant? 2) Whether the plaintiff is entitled for possession of the suit schedule property? 3) Whether the defendant proves that the suit as brought is not maintainable? 4) Whether the defendant proves that the plaintiffs has executed an agreement of sale as contended in para-12 of the written statement and in all he has received an advance amount of Rs.2,50,000-00 & he is in lawful possession of S.S. properties? 5) Whether the plaintiff is entitled for mesne profits? 6) What decree or order? 6. The plaintiff in support of his case got himself examined as PW.1 and produced 41 documents which came to be marked as Exs.P-1 to P-41. The defendant in support of his case got examined himself as DW.1 and one attesting witness as DW.2. He produced in all 59 documents which came to be marked as Exs.D-1 to D-59. 7. 6. The plaintiff in support of his case got himself examined as PW.1 and produced 41 documents which came to be marked as Exs.P-1 to P-41. The defendant in support of his case got examined himself as DW.1 and one attesting witness as DW.2. He produced in all 59 documents which came to be marked as Exs.D-1 to D-59. 7. The trial Court on the basis of the oral and documentary evidence on record held that the plaintiff has failed to prove that he has mortgaged the suit schedule land in April 1990 and received an amount of Rs.2 lakhs from the defendant. It further held that he is not entitled for possession of the suit schedule property. It further held that the defendant has proved that the suit as brought is not maintainable and he has not proved that the plaintiff has executed an agreement to sell as contended in para 12 of the written statement and in all he has received advance amount of Rs.2,50,000/- and he is in lawful possession of the suit schedule property. It further held that the plaintiff is not entitled for mesne profits and accordingly by its judgment and decree dated 06.02.2007 dismissed the suit of the plaintiff. 8. The appellant/plaintiff being aggrieved by the judgment and decree of dismissing his suit is in appeal before this Court. 9. The learned counsel for the appellant/plaintiff contended that the trial Court despite having come to the conclusion that the plaintiff has failed to prove the mortgage, has erred in not decreeing the suit as prayed for possession as the title to the property is not in dispute as admitted and accepted by the defendant. He further contended that the case of the defendant that plaintiff has entered into an agreement to sell having been held to be not proved by the trial Court, the only alternative left was to decree the suit of the plaintiff for possession as the title to the property is not disputed. He further contended that though it was the case of the plaintiff that the suit was based on mortgage, he having failed to prove the same, the suit for possession is maintainable, in view of what is contemplated under Section 31 of the Specific Relief Act. He further contended that though it was the case of the plaintiff that the suit was based on mortgage, he having failed to prove the same, the suit for possession is maintainable, in view of what is contemplated under Section 31 of the Specific Relief Act. Therefore, taking from any angle as the evidence and the documents on record reveal that the suit of the plaintiff is maintainable for possession as the title to the property is not disputed, the trial court ought to have decreed his suit for possession as prayed for and having not done so, the impugned judgment and decree of the trial Court is not sustainable, it be set aside and the suit be decreed for possession. 10. Per contra, learned counsel for the respondent contended that the pleadings in the plaint and the evidence on record reveal that the suit is based on the ground that it is a mortgage. In this connection, elaborating his submission he contended that the legal notice issued by the plaintiff itself reveals that the suit property had been mortgaged. In view of the fact that he has failed to prove the mortgage, the trial Court was justified in dismissing the suit. He further contended that it is the case of the defendant that the plaintiff had agreed to sell the suit schedule property under the sale agreement dated 27.5.1993. The same has been proved by the defendant by his evidence and by the evidence of DW.2. The trial Court without appreciating the evidence of the defendant and his witness DW.2 and the documents placed on record in right perspective has come to the wrong conclusion that the defendant has failed to prove the agreement of sale and further as the plaintiff has failed to prove his case has rightly dismissed the suit of the plaintiff. The same does not call for any interference, accordingly, the appeal be dismissed. 11. Taking the rival contentions into consideration, evidence and documents placed on record, the points that arise for my consideration are:- 1. "Whether the suit of the plaintiff for possession is maintainable and whether he is entitled to the relief of possession? 2. Whether the defendant has proved due execution of the sale agreement as contended by him? 3. Whether the impugned judgment and decree calls for any interference? 12. Re-point Nos. "Whether the suit of the plaintiff for possession is maintainable and whether he is entitled to the relief of possession? 2. Whether the defendant has proved due execution of the sale agreement as contended by him? 3. Whether the impugned judgment and decree calls for any interference? 12. Re-point Nos. 1 & 2:- Since the evidence and the documents on record on these two points are inter connected with each other they are taken up for consideration together. It is the case of the plaintiff that he had borrowed a sum of Rs.2 lakhs from the defendant and had mortgaged the suit schedule property. It is also his case that he signed on some blank papers as offered by the defendant and he signed on them believing that is the mortgage deed. The mortgage was for a period of five years. After the expiry of the period of five years, he requested the defendant to redeem the mortgage and put him back to possession after receiving a sum of Rs.2 lakhs. The defendant did not accede to his request. Therefore, he issued a legal notice, to which he sent an untenable reply. As his request was not acceded to, despite issuing legal notice, he had to file the suit seeking possession of the suit property and for mesne profits. On the other hand, it is the case of the defendant that the plaintiff had not mortgaged his property by borrowing a sum of Rs.2 lakhs. It is his specific case that the plaintiff initially in the year 1990 had entered into an agreement of sale to sell the suit schedule property and in pursuance of the same, he had received an amount of Rs.1 lakh and had executed an agreement of sale. Again he received a further sum of Rs.25,000/- and acknowledged the same in the second agreement of sale agreeing to sell the suit schedule property. It is his further case that thereafter on 16.3.1991 the plaintiff executed third agreement of sale under which he received an additional sum of Rs.25,000/-. Thus, in all a sum of Rs.1,50,000/- agreeing to sell the suit schedule property for a sum of Rs.2,50,000/-. It is his further case that thereafter on 16.3.1991 the plaintiff executed third agreement of sale under which he received an additional sum of Rs.25,000/-. Thus, in all a sum of Rs.1,50,000/- agreeing to sell the suit schedule property for a sum of Rs.2,50,000/-. It is his further case that thereafter on 27.5.1993 the plaintiff executed the agreement of sale Ex.D.1 agreeing to sell the suit schedule property for a sum of Rs.2,86,000/-, out of which, he received a sum of Rs.1 lakh including the sum he had received earlier to the tune of Rs.1,50,000/- and further directed the plaintiff to pay the balance of Rs.36,000/- towards the discharge of his loan in PLD bank and to meet the expenses of his tenancy case before the Tribunal. Accordingly, the said agreement of sale is executed by the plaintiff and his two sons in the presence of three witnesses including DW.2. He could not pay the amount due to the Tribunal, as they objected to receive the same stating that the suit is pending between the parties. Therefore, he could not pay the same. It is his specific case that since the plaintiff had agreed to sell the property by executing the sale of agreement Ex.D.1 he was always ready and willing to perform his part of contract. The case of the plaintiff that he had mortgaged the property is not true and correct and therefore the suit of the plaintiff is liable to be dismissed. It is also his case that he has made vast improvement in land by investing huge amount ever since he was put in possession of the property and since the plaintiff has agreed to sell the property and as he is in possession he cannot be disturbed of his possession unless he has recourse to law and therefore the suit be dismissed. The evidence and documents on record clinchingly establish that the plaintiff is the owner of the property. His title to the property is not in dispute. It is admitted and accepted by the defendant. It is fortified by the case of the defendant in stating that the plaintiff had entered into an agreement of sale to sell the suit schedule land. His title to the property is not in dispute. It is admitted and accepted by the defendant. It is fortified by the case of the defendant in stating that the plaintiff had entered into an agreement of sale to sell the suit schedule land. Therefore, from the material on record it can be safely held that the title to the suit schedule property of the plaintiff is admitted and accepted by the defendant and he is the owner of the same. His case is that he had mortgaged the property and raised loan of Rs.2 lakhs. According to him, at the time he received a sum of Rs.2 lakhs from the defendant, the defendant took the signatures on blank papers and he signed on the same believing it to be a mortgage deed. The said mortgage deed has not been produced by either of the parties before the court. Though the plaintiff has claimed that he had mortgaged the property, as no document is placed, it has to be taken according to him, it is an oral mortgage. It is well settled that an oral mortgage is difficult to be proved in a Court of law. In the absence of the same, the material on record reveals that the title to the property of the plaintiff having not been disputed it has to be seen, whether despite he having failed to prove the mortgage, whether he is entitled to relief to the possession of the suit schedule property. Learned counsel for the appellant relying upon the decision reported in AIR 1974 SC 689 , contended that where the plaintiff cannot regain the possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. 13. In the aforesaid decision, it has been held as follows:- Transfer of Property Act (1882), Section 59 - Oral Mortgage with possession - Remedy of mortgage. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his tile. AIR 1935 Rang. 230 and AIR 1958 Raj. 102 Rel. on. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his tile. AIR 1935 Rang. 230 and AIR 1958 Raj. 102 Rel. on. A perusal of the aforesaid decision discloses that if the plaintiff cannot regain possession on basis of the oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. As already stated in this case, it is the case of the plaintiff that he had mortgaged the property and had taken Rs.2 lakhs from the defendant. The said mortgage deed is not produced before the Court. It is only his serving testimony that remains for consideration. As indicated in the above judgment, an oral mortgage cannot be proved in a court of law. So if his case of mortgage of property is held to be negative then next question that arises is whether he can still seek for relief of possession. Admittedly, his title to the property is not in dispute. It is admitted and accepted. As indicated in the aforesaid judgment, if the title to the property is not in dispute, suit for possession is maintainable. Apart from the same, as rightly contended by the learned counsel for the appellant Section 34 of the Specific Relief Act provides for maintaining the suit for possession subject to the condition that the title is not in dispute. As in this case the title to the property is not in dispute, in view of what has been held by the Apex Court in the aforesaid judgment the plaintiff can maintain the suit for possession and he is entitled to the said relief. Nextly, it is to be seen whether the defendant has proved his case. According to him the plaintiff had agreed to sell the property by executing the sale of agreement for a sum of Rs.2,86,000/- as per Ex.D.1. It is his case prior to that initially the plaintiff had executed an agreement of sale agreeing to sell the property for a sum of Rs.2,50,000/- and in the year 1990 had executed the said sale agreement by taking a sum of Rs.1 lakh. It is his case prior to that initially the plaintiff had executed an agreement of sale agreeing to sell the property for a sum of Rs.2,50,000/- and in the year 1990 had executed the said sale agreement by taking a sum of Rs.1 lakh. Subsequently, he executed another agreement of sale by paying a sum of Rs.25,000/-. Nextly, executed third agreement of sale on 16.3.1991 agreeing to sell the suit schedule property for a sum of Rs.2,50,000/- in which, it was disclosed that he had already taken Rs.1,50,000/-. It is his further case that thereafter he executed the last agreement i.e. Ex.D.1 dated 27.5.1993 agreeing to sell the suit schedule property for a sum of Rs.2,86,000/- out of which, he received a sum of Rs.1 lakh as balance amount excluding the amount he had received earlier and directed him to pay balance of Rs.36,000/- towards discharge of loan raised in the PLD bank and the expenses to be meted out in connection with the tenancy case. He discharged the loan towards PLD bank and he could not pay the amount to the land Tribunal as indicated by the plaintiff since they refused to receive the same on the ground of pendency of the suit. Therefore, it is the specific case of the defendant that the plaintiff had agreed to sell the property to him for consideration of Rs.2,86,000/- and had executed four agreements to sell. It is also his case that out of the four agreements, he is in possession of only one original agreement i.e. Ex.D.1 dated 27.5.1993 and he has Xerox copy of the third agreement dated 16.3.1991. It is his case that when the third agreement was executed the plaintiff took back earlier two agreements executed by him. Therefore he is unable to place the said agreements before the Court. In support of his case in respect of execution of the agreement of sale he has examined his witness as DW.2. DW.2 in his evidence claims that he can identify his signature but no where he has identified the signature of other witnesses. He has claimed in his evidence that the plaintiff received an amount of Rs.2,50,000/- as on the date of Ex.D.1 i.e. on 27.5.1993. It is also his evidence that the said agreement was executed agreeing to sell the property for a sum of Rs.2,86,000/-. He has claimed in his evidence that the plaintiff received an amount of Rs.2,50,000/- as on the date of Ex.D.1 i.e. on 27.5.1993. It is also his evidence that the said agreement was executed agreeing to sell the property for a sum of Rs.2,86,000/-. There is no whisper in his evidence in respect of earlier agreements executed by the plaintiff in favour of the defendant as contended by the defendant. Though the defendant contends that the plaintiff had taken back earlier agreements, in the last agreement that has been executed by the plaintiff according to him there is no recital to that effect that the plaintiff had executed the earlier agreements disclosing the amount paid under the same and had agreed to sell the property. However, there is a recital to the fact that he had executed one of the agreement but that agreement as already stated according to him has been returned. But it is difficult to believe the said version of the defendant that he returned back the said agreements to sell when there is no recital to that effect in the last agreement Ex.D1 dated 27.05.1993. Apart from this, now we have to see the conduct of the defendant. It is his case that the plaintiff had agreed to sell the property under the agreement of sale by taking consideration of Rs.2,86,000/-. A perusal of Ex.D.1 last sale agreement dated 27.5.1993 disclose the period stipulated for execution of the sale deed in pursuance of the sale of agreement is two months. Though the defendant in his written statement has specifically pleaded that he was always ready and willing to perform his part of contract, the material on record and his conduct does not disclose that he had made any attempt to show that he was ready to perform his part of contract. It must be stated that if his contention is to be accepted, he would have shown his bonafide by issuance of notice calling upon the plaintiff to execute the sale deed in pursuance of the agreement of sale. No such material has been placed before the Court nor the defendant has stated on oath before the Court to that effect. It must be stated that if his contention is to be accepted, he would have shown his bonafide by issuance of notice calling upon the plaintiff to execute the sale deed in pursuance of the agreement of sale. No such material has been placed before the Court nor the defendant has stated on oath before the Court to that effect. Therefore, the case of the defendant that the plaintiff had entered into an agreement of sale, in the facts and circumstances having regard to the four agreements which according to him had been executed, out of which, three are not before the Court, it is difficult to accept the case of the defendant that the plaintiff had agreed to sell his property by executing sale of agreement. Therefore, it has to be held that the defendant has failed to prove that the plaintiff has entered into an agreement of sale to sell the suit schedule property for a consideration of Rs.2,86,000/-. It is also fortified from the fact that he has also not produced any document by way of receipts to show that he had discharged the loan as indicated by the plaintiff to PLD Bank. In that view of the matter, as already indicated the case of the defendant that the plaintiff had agreed to sell the property cannot be believed and in that view of the matter what remains for consideration would be whether the relief as prayed for by the plaintiff for possession could be granted. As already pointed out above, the title to the property of the plaintiff is not disputed. Therefore, as held by the Apex Court a suit for possession is maintainable if the title is not in dispute. Therefore, in the facts and circumstances of the case plaintiff would be entitled to relief of possession. The Trial Court in this connection in my view has erred in coming to a wrong conclusion that the plaintiff is not entitled to the relief of possession after holding that both the plaintiff and the defendant have not proved their case of mortgage and sale of agreement when title to the property is not disputed. It is the case of the plaintiff that after borrowing the amount of Rs.2 lakhs he had put the defendant in possession of the suit schedule land. It is the case of the plaintiff that after borrowing the amount of Rs.2 lakhs he had put the defendant in possession of the suit schedule land. The defendant has not disputed that he having been put in possession of suit schedule property. In view of the same, the material on record reveals that the defendant is in possession of the suit schedule property. Therefore, the plaintiff would be entitled to possession of suit schedule property. 13. Re-point No.3:- For the reasons stated to above, the impugned judgment and decree of the Trial Court cannot be sustained. 14. In the result for the foregoing reasons, I proceed to pass the following:- ORDER (i) The appeal is allowed. (ii) The impugned judgment and decree of the Trial court is set-aside. Suit filed by the plaintiff for relief of possession is decreed. The plaintiff is directed to deposit a sum of Rs.2 lakhs borrowed from the defendant within four weeks on receipt of the copy of the judgment and decree. Parties to bear their own costs.