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2012 DIGILAW 985 (HP)

Bakshi v. Dhani Ram

2012-12-17

RAJIV SHARMA

body2012
JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 27.11.2004 rendered by the learned Additional District Judge, Ghumarwin, District Bilaspur, H.P. in Civil Appeal No. 43/13 of 4/1999. 2. Essential facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as the ‘plaintiff’ for convenience sake) filed a civil suit for permanent prohibitory injunction against the respondent-defendant (hereinafter referred to as ‘defendant’ for convenience sake). According to the plaintiff, he is owner in possession of the land measuring 1-6 bighas comprised in Khasra No. 178/158 Khewat No. 55 Khatoni No.63 min situated in village Bakroa, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur, H.P. According to him, defendant has no right, title or interest over the suit land. Case of the plaintiff is that he allowed the defendant to construct house for him on contract basis. Defendant threatened on 20.7.1993 to raise construction in the suit land and also started leveling the suit land. 3. Suit was contested by the defendant. According to the defendant, plaintiff is not owner in possession over the suit land. Defendant is owner in possession of the suit land. The plaintiff has received the consideration and put the defendant in possession of the suit land. 4. Replication was filed by the plaintiff. Issues were framed by the learned Sub Judge 1st Class, Ghumarwin on 17.2.1995. Learned trial court decreed the suit in favour of the plaintiff. Defendant preferred an appeal before the learned Additional District Judge, Ghumarwin, District Bilaspur. He allowed the same. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. “Whether document which is required to be registered necessarily under Transfer of Property Act but not registered under the Registration Act falls within the scope of section 49 of the Registration Act. Is not same inadmissible in evidence by virtue of section 91 of the Indian Evidence Act? 2. Whether Ex.DW-2/A is contrary to law, if permitted it would defeat the provisions of Rule 12 (f) of H.P. Nautor Rules and would also be opposed to public policy as envisaged in section 23 of the Contract Act?” 5. Mr. Praneet Gupta has supported the judgment and decree passed by the learned Sub Judge dated 28.12.1998. According to him, Ex.DW-2/A is contrary to law. Mr. Praneet Gupta has supported the judgment and decree passed by the learned Sub Judge dated 28.12.1998. According to him, Ex.DW-2/A is contrary to law. He also contended that the document, i.e. Ex.DW-2/A was required to be registered necessarily under the Transfer of Property Act. 6. Mr. T.S. Chauhan, Advocate has supported the judgment and decree passed by the first appellate court. 7. I have heard the learned counsel for the parties and have perused the pleadings and record carefully. 8. Since both the substantial questions of law are interconnected and interlinked they are taken up together for determination to avoid repetition of discussions of evidence. 9. Plaintiff has appeared as PW- 1. He has deposed that he is owner in possession of the suit land. Defendant has constructed a house over the suit land for him on contract basis. He has never promised to sell two biswas of land to the defendant. Defendant has forcibly entered in the suit land. He has denied the execution of the agreement Ex.DW-2/A. 10.PW-2 Shiv Ram has testified that the plaintiff is owner in possession of the suit land. He has built a house over the same. 11.Defendant has appeared as DW- 1. According to him, he has purchased the suit land measuring 2 biswas and 2 biswansi from the plaintiff for consideration of ‘ 2625/-. The agreement was scribed by DW-2 Sh. Ganga Ram. It was witnessed by Dhani Ram and Dila Ram, 12.DW-2 Ganga Singh has deposed that he scribed the agreement dated Ex.DW-2/A. He read over and explained the contents to the parties and the plaintiff put his thumb impression in presence of DW-3 Dhani Ram and Dila Ram. He identified his signatures on the document. According to him, defendant has not paid any consideration in his presence to the plaintiff. 13.DW-3 Dhani Ram has deposed that Ex.DW­2/A was scribed in his presence by Sh. Ganga Ram. He has also deposed that defendant did not give any consideration to the plaintiff in his presence. 14.Plaintiff has also produced copy of jamabandi Ex.P- 1 for the year 1986-87. Defendant has proved the execution of agreement Ex.DW-2/A dated 27.1.1987 by examining scribe PW-2 Sh. Ganga Singh as well as marginal witness DW-3 Dhani Ram. 15.What appears from the contents of agreement Ex.DW-2/A is that defendant has already constructed the house on the land measuring 2 biswas 2 biswansis. Defendant has proved the execution of agreement Ex.DW-2/A dated 27.1.1987 by examining scribe PW-2 Sh. Ganga Singh as well as marginal witness DW-3 Dhani Ram. 15.What appears from the contents of agreement Ex.DW-2/A is that defendant has already constructed the house on the land measuring 2 biswas 2 biswansis. Plaintiff has admitted in clear terms the receiving of consideration of ‘ 2625/- from the defendant. He had also handed over the possession of the suit land to the defendant. Since the land was allotted to the plaintiff under nautor scheme, he could not alienate the same for a period of 15 years. In these circumstances, he had undertaken vide agreement Ex.DW-2/A to execute the sale deed after the expiry of 15 years. In fact, defendant has already constructed the house on the suit land before 27.1.1987. 16. Mr. Praneet Gupta has vehemently argued that Ex.DW-2/A violates rule 12 (f) of the Himachal Pradesh Nautor Rules. This plea was never taken up by the plaintiff before the courts below. In fact, plaintiff himself has sold the land to the defendant vide Annexure DW-2/A and now he is precluded from raising this plea. A wrong doer cannot take shelter under the wrong committed by him. He knew about the existence of this condition when he entered into agreement Ex.DW-2/A with the defendant on 27.1.1987. He had also received the consideration of ‘ 2625/- from the defendant. The possession of the land was delivered. As far as section 49 of the Registration Act is concerned, learned first appellate court below has taken this section into consideration to ascertain the possession. According to Ex.DW-2/A, agreement to sell was to be executed only after 15 years and only thereafter the document could be registered. 17. Consequently, both the substantial questions of law are answered accordingly. 18.Accordingly, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.