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2013 DIGILAW 871 (HP)

Deepak Mohan Sud v. DHARMENDER KUMAR

2013-10-04

V.K.SHARMA

body2013
JUDGEMENT V.K.SHARMA, J. - 1. THE present suit for grant of a decree for declaration, mandatory injunction and perpetual prohibitory injunction was initially filed by the plaintiffs against as many as eight defendants to the following effect: "that the Plaintiffs are owners in possession of the land presently comprised in Khata Khatauni No. 1/1 min Khasra Nos. 191, 192 and 193 measuring 433.27 sq. mt. situated in Dhingra Estate, Station Ward Boileauganj Khas, Tehsil Shimla Urban, District Shimla and that the sale deed to the extent of 1/4th undivided share executed by Defendant of No.1 in favour of defendant Nos. 7 and 8 with respect to Khasra No. 191 registered in the office of the Sub Registrar (Urban) Shimla at serial No. 175/2009 Book No. 1 Volume 583 pages 89 93 on 22nd May, 2009 is illegal, null and void and not binding on the plaintiffs and a decree for mandatory injunction be also passed in favour of the Plaintiffs and against the defendants directing the defendants to execute sale deed or instrument of transfer or addendum qua the entire land comprised in Khata Khatauni No. 1/1 min Khasra Nos. 191, 192 and 193 measuring 433.27 sq mt. situated in Dhinga Estate, Station Ward Boileauganj Khas, Tehsil Shimla Urban, District Shimla in favour of the plaintiffs and a decree for permanent perpetual prohibitory injunction be also passed in favour of the Plaintiffs and against the defendants restraining the defendants from in any manner transferring or alienating or in any manner creating third party rights qua the said property as also from interfering with the possession of the Plaintiffs with respect to the said land comprised in Khata Khatauni No. 1/1 min Khasra Nos. 191, 192 and 193 measuring 433.27 sq mt. situated in Dhinga Estate, Station Ward Boileauganj Khas, Tehsil Shimla Urban, District Shimla. Costs of the suit be also allowed to the Plaintiffs against the defendants." 2. HOWEVER , later on, consequent upon transfer of of their interest in the suit property by defendants No. 2 to 6 in favour of one Shri Dharmender Kumar, he was impleaded as defendant No.9 vide order dated 5.1.2012, in OMP No. 445 of 2011. Costs of the suit be also allowed to the Plaintiffs against the defendants." 2. HOWEVER , later on, consequent upon transfer of of their interest in the suit property by defendants No. 2 to 6 in favour of one Shri Dharmender Kumar, he was impleaded as defendant No.9 vide order dated 5.1.2012, in OMP No. 445 of 2011. Thereafter, names of defendants No. 1 to 8, who had transferred their rights of ownership in the suit property in favour of defendant No.9 during pendency of the suit, were ordered to be deleted from the array of defendants vide order dated 25.06.2012, in OMP No. 160 of 2012, leaving defendant No.9 as the sole defendant, who on failure to put in appearance was proceeded against ex parte vide order dated 28.3.2012. The plaintiffs have led evidence including ex parte evidence. Besides examining six other witnesses, namely PW 1 Shri Madan Lal, Patwari, PW 2 Shri Neeraj, an official of the office of the Sub Registrar (Urban), Shimla, PW 3 Shri Vijay Pandit, Advocate, PW 4 Shri S.R. Shabbi, one of the marginal witnesses to agreement Ex.PW 3/C, PW 5 Shri Josinder Lal, Reader to the Tehsildar (Urban), Shimla and PW 6 Shri Shiv Dev Singh , Tehsildar, plaintiff No.1 Shri Deepak Mohan Sood has appeared as plaintiffs' . own witness as PW 7, who has stated as under: "Stated that the original defendants No. 1 to 5, whose names stand deleted, had executed an agreement of sale of land dated of 18th April, 2006 in favour of the plaintiffs including myself in respect of the suit (sic) property fully detailed and described in para 1 of the plaint for a consideration of Rs.90,00,000/ (rupees ninety lacs only). Ex. PW 3/A is the original agreement. Tatima Ex. PW 1/A was annexed with the agreement Ex. PW 3/A. Pursuant to agreement Ex. PW 3/A, the requisite sale deed was executed by the deleted defendants No. 1 to 5 in our favour. However, while executing the sale deed Ex. PW 3/B, a part of the property agreed to be sold bearing Khasra Nos. 191, 192 and 193, measuring 433.27 sq. meters was inadvertently left out to be included in the sale deed due to oversight. In order to overcome this mistake an addendum was executed by deleted defendants No. 1 to 5 in our favour on 13.12.2007. The original addendum is Ex. 191, 192 and 193, measuring 433.27 sq. meters was inadvertently left out to be included in the sale deed due to oversight. In order to overcome this mistake an addendum was executed by deleted defendants No. 1 to 5 in our favour on 13.12.2007. The original addendum is Ex. PW 3/C. As per addendum Ex. PW 3/C, deleted defendants No. 1 to 5 had to execute sale deed with respect to the aforesaid left out property in our favour. However, instead of honoring and addendum Ex. PW 3/C, they sold the aforesaid land bearing Khasra Nos. 191, 192 and 193 to the original defendants No. 7 and 8, Sh. Prashant of Jain and Sh. Gautam Jain, whose names have since been deleted from the array of defendants, who inturn sold the same to original defendant No. 9, Sh.Dharmender Kumar (now sole defendant) vide sale deeds Ex. PW 5/A, dated 30.12.2011 and Ex. PW 5/B, dated 11.3.2011. Deleted defendants No. 1 to 5 had delivered the possession of the aforesaid land bearing Khasra numbers 191, 192 and 193 measuring 433.27 sq. meters to us (plaintiffs) at the time of execution of the sale deed Ex. PW 3/B dated 19.5.2006. Sh. Dharmender Kumar, the sole defendant has conceded to my claim to the land bearing Khasra Nos. 191, 192 and 192 measuring 433.27 sq. meters vide affidavit Ex. PW 6/A, dated 19.4.2011 sworn by him before PW 6, Shiv Dev Singh, Tehsildar. The plaintiffs are owners in possession of the suit land bearing Khasra Nos. 191, 192 and 193 measuring 433.27 sq. meters and may kindly be declared as such." 3. PW 6 Shri Shiv Dev Singh, Tehsildar, has proved affidavit Ex.PW 6/A, whereby the sole defendant, Shri Dharmender Kumar has conceded the claim of the plaintiffs to the suit land. 4. FROM the oral and documentary evidence, including ex parte evidence led on behalf of the plaintiffs, which remains totally unrebutted, it is made out that though the plaintiffs had paid the entire sale consideration of Rs.90,00,000/ (rupees ninety lac only) under agreement Ext.PW.3/A, yet inadvertently the suit land was left out to be included in sale deed Ext.PW.3/B. Thus, though the plaintiffs have already become de facto owners in possession of the suit land, they are yet to acquire de jure title to the same by execution of a formal sale deed by the defendant in their favour. In view of the above, the suit of the plaintiffs is decreed, holding them to be de facto owners in possession of the suit land with a direction to the defendant to execute a formal sale deed in respect of the suit land in their favour and get the same registered from the competent Authority within 60 days from today, failing which the sale deed shall be liable to be executed and registered under orders of this Court at the expenses of the defendant, for which liberty is reserved to the plaintiffs. The prayer of the plaintiffs for perpetual prohibitory injunction, restraining the defendant from causing interference with the suit land in any manner, whatsoever, is also granted.