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2012 DIGILAW 873 (HP)

Birja Nand v. Rukmi Nand

2012-11-23

V.K.AHUJA

body2012
Judgment V.K. Ahuja, J. This is a regular second appeal filed by the appellant under section 100 C.P.C. against the judgment and decree, dated 16.11.2002, passed by the learned Additional District Judge, Shimla, vide which he affirmed the judgment and decree, dated 13.9.2001, passed by the learned Sub Judge, Court No.2, Rohru, District Shimla, H.P., decreeing the suit of the respondent for possession as against the appellant. 2. Briefly stated, the facts of the case are that the respondent, hereinafter also referred to as the plaintiff, filed a suit for possession as against the appellant, hereinafter also referred to as the plaintiff. It was alleged by the plaintiff that he had purchased the suit land comprised in khasra No.977, 978, 1067/1065 from one Sunpur in the year 1976 vide registered sale deed. The plaintiff was employed in Indian Army and the defendant, in his absence, took possession of the disputed land. It was further alleged that one of the khasra No.87 (new) is shown in possession of the defendant, but the same is in possession of the plaintiff as an orchard. The plaintiff requested the defendant to hand over the possession but he refused. Thereafter, the plaintiff filed a suit but the same was withdrawn on some formal defect vide order dated 8.8.1996. The plaintiff filed the suit thereafter for possession. 3. Defendant contested the suit on maintainability etc. On merits, he took up the plea that Sunpur had no legal right to alienate the suit land in favour of the plaintiff since he had already sold the land to the defendant vide document dated 29.6.1976, with possession. He also pleaded that in part performance under Section 53-A of the Transfer of Property Act, he is in possession of the suit land. He also took up the plea in the alternative that the plaintiff’s possession became adverse to the defendant and as such he is owner in possession of the suit land. 4. On the pleadings of the parties, the following issues were framed by the learned trial Court: “1. Whether the plaintiff is entitled to the relief of possession as prayed for? OPP 2. Whether the suit is not maintainable in the present form as alleged? OPD 3. Whether the suit is hit by provision of section 53-(A) of TPA as alleged? 4. Whether the plaintiff is entitled to the relief of possession as prayed for? OPP 2. Whether the suit is not maintainable in the present form as alleged? OPD 3. Whether the suit is hit by provision of section 53-(A) of TPA as alleged? 4. Whether the plaintiff is estopped from filing the present suit on account of his acts, deeds and conduct? OPD 5. Whether the suit is barred by limitation as alleged? OPD 6. Whether the suit is not valued properly for the purpose of court fees and jurisdiction? OPD 7. Relief.” 5. Parties led their evidence and the learned trial Court vide its impugned judgment, decreed the suit of the plaintiff in full. On appeal, those findings were upheld by the learned Additional District Judge. 6. The appeal was admitted by this Court on the following substantial questions of law: “1.Whether the claim of the respondent for seeking possession of the suit land is bared by limitation inter alia for the reason that the appellant has been coming in possession of the suit land since 1976 claiming himself to be owner of this land on the basis of sale and entries in the revenue record Ext.PW-1/A for the year 1982-83 and in the subsequent entries prepared during the settlement operation. Also appellant having been recorded as owner due to sale, therefore, the suit was required to be dismissed. 2. Whether in view of Ext.PW-1/C, whereby suit was withdrawn, since the respondent failed to pay the cost and comply with the terms of this compromise, therefore, second suit was not maintainable?” 7. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellant were that the defendant is in possession since long on the basis of agreement to sell Ext.PW-2/A, writing dated 21.6.1976. I have heard the learned counsel for the parties and have gone through the record of the case. 8. The submissions made by the learned counsel for the appellant were that the defendant is in possession since long on the basis of agreement to sell Ext.PW-2/A, writing dated 21.6.1976. The learned trial Court has rightly reproduced the three pre requisites for invoking the equitable doctrine of part performance in paragraph 10 of its judgment, which are reproduced below: “(a) that there must be a contract to transfer for consideration immovable property in writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (b) that it must be shown that the transferee has, in part performance of the contract, either taken possession of the property or any part thereof, or the transferee being already in possession, continues in possession and has done some act in furtherance of the contract; and (c) that the transferee has performed or is willing to perform his part of the contract.” 9. It was rightly observed by the learned trial Court that this document is not the original one and is only a photocopy of the document which was sought to be proved by the witnesses. There is nothing on the record to show that any permission was taken to prove the said document in secondary evidence. The document was rightly not relied upon by the learned trial Court since the three pre requisites mentioned above were not fulfilled. It was also not relied upon by the learned trial Court on the ground that there is no description of the khasra numbers in this document. Therefore, the land could not have been identified. It was also not pleaded by the defendant that he was ready and willing to perform his part of the contract and, therefore, he was rightly held to be not entitled to possession. 10. In regard to adverse possession, it was rightly observed by the learned trial Court that this is a contradictory plea since the defendant had claimed to be in possession on the basis of part performance of the contract which could be termed as permissive possession and not adverse. 10. In regard to adverse possession, it was rightly observed by the learned trial Court that this is a contradictory plea since the defendant had claimed to be in possession on the basis of part performance of the contract which could be termed as permissive possession and not adverse. The defendant had to specifically plead that his possession had become adverse to the knowledge of the owner and from which date, which pleadings were lacking since no period was alleged or proved in evidence. Therefore, the plea of adverse possession, in the alternative, was also not available to the defendant. 11. In case the plaintiff claims possession on the basis of title, one ground on which the plaintiff can be non-suited is if the defendant is able to prove his adverse possession as against the true owner and even though the suit had been filed after a period of 12 years on the basis of long possession of the defendant, the owner cannot be precluded from claiming possession until and unless the defendant proves his adverse possession over the suit land in which the defendant had failed. Therefore, the findings of the learned trial Court on these grounds were correct and by well reasoned judgment, the suit had been decided by the learned trial Court. 12. All these points were also considered by the learned First Appellate Court, which had answered all the pleas raised during the course of arguments. In regard to another plea raised by the learned counsel for the defendant that the suit was not maintainable, this plea was never raised by the defendant before the learned trial Court or before the learned First Appellate Court and the appeal in question, as mentioned above, has not been admitted on any such grounds, which can be looked into and no ground can be looked into beyond the substantial question of law on which the appeal was admitted. In regard to the plea that the suit was withdrawn and the respondent had failed to pay the cost, no such plea was raised by the defendant in his written statement and no issues were framed or claimed and until and unless there was an opportunity to both the parties to lead evidence on this point, it cannot be held that the plaintiff had failed to pay the cost imposed before filing the suit. This point had to be pleaded and proved and in the absence of any issue, no findings had been recorded and this plea cannot be allowed to be raised at this stage, which is a mixed question of law and fact and this plea is not tenable. 13. On appraisal of the record of the case and the findings recorded by the learned trial Court, I am accordingly of the opinion that there is no merit in the appeal filed by the appellant, which is dismissed. However, the parties are left to bear their own cost.