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2014 DIGILAW 558 (PNJ)

Joginder Singh v. Jarnail Singh

2014-03-18

PARAMJEET SINGH

body2014
JUDGMENT Mr. Paramjeet Singh, J.:- CM No.12875-C of 2012 Having heard counsel for the applicant and for the reasons mentioned in application, delay of 146 days in re-filing the appeal is condoned. Application is allowed. RSA No.4613 of 2012 This regular second appeal is directed against the judgment and decree dated 06.06.2011 passed by learned Additional Civil Judge (Sr. Divn.), Ferozepur whereby suit preferred by appellant-plaintiff has been dismissed and against the judgment and decree dated 17.01.2012 passed by learned Additional District Judge, Ferozepur whereby appeal preferred by appellant-plaintiff has also been dismissed. 2. For convenience sake, reference to parties is being made as per their status in the suit. 3. The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. However, the brief facts are to the effect that plaintiff filed suit for permanent injunction restraining the defendant from forcibly dispossessing him or interfering in his possession over the house in dispute, mentioned in the head-note of plaint. It was pleaded that parties to the suit are real brothers. Previously, their father Sucha Singh was owner in possession of the house in dispute, who had sold the same to the plaintiff on 01.03.2002 for valuable consideration vide receipt dated 01.03.2002 possession of which was also delivered to the plaintiff. Since then, the plaintiff has been in continuous possession of the same. It was pleaded that the defendant, without any right, was allegedly bent upon to interfere in the possession of the plaintiff over the house in dispute. Hence, suit was filed. 4. Defendant resisted the suit and filed written statement taking various preliminary objections. On merits, it was pleaded that father of the parties was owner in possession of the house in dispute. It was denied that the plaintiff has purchased the house in dispute from his father or that he is owner in possession of the house in dispute. It was pleaded that possession was never delivered to the plaintiff. Other averments in plaint were denied. 5. On the basis of pleadings of parties, the Court of first instance framed following issues: “1. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether the plaintiff has concealed the material facts from the court?OPD 4. Relief.” 6. 5. On the basis of pleadings of parties, the Court of first instance framed following issues: “1. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP 2. Whether the suit of the plaintiff is not maintainable in the present form?OPD 3. Whether the plaintiff has concealed the material facts from the court?OPD 4. Relief.” 6. After appreciating the evidence, the Court of first instance dismissed the suit. Feeling aggrieved, the plaintiff preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this second appeal. 7. I have heard learned counsel for the appellant and perused the record. 8. Learned counsel for the appellant has referred to following substantial questions of law suggested in the grounds of appeal for consideration by this Court: (i) Whether the judgments and decrees passed by both the courts below are illegal and gross misreading of evidence hence cause miscarriage of justice? (ii) Whether there is misinterpretation of evidence? (iii) Whether the impugned judgments and decrees are illegal and not sustainable in the eyes of law? 9. Learned counsel for the appellant has contended that both the courts below have misread the evidence and findings of both the courts below are based on surmises and conjectures. Learned counsel has further contended that the defendant has no concern with the disputed house and it is under the lawful possession and control of the plaintiff. 10. I have considered the contentions of learned counsel for the appellant. 11. The plaintiff has mainly relied upon receipt (Ex.P-2) vide which Sucha Singh had allegedly sold the disputed house to the plaintiff for a sale consideration of Rs.60,000/-. Both the courts below have rightly held that a document involving transfer of immovable property of more than Rs.100/- requires compulsory registration under Section 17 of the Indian Registration Act. The alleged receipt Ex.P-2 being unregistered, cannot be looked into and the same is inadmissible in evidence. Both the courts below have also rightly held that there is nothing on record to prove the exclusive possession of the plaintiff over the house in dispute to the exclusion of other co-sharers. The alleged receipt Ex.P-2 being unregistered, cannot be looked into and the same is inadmissible in evidence. Both the courts below have also rightly held that there is nothing on record to prove the exclusive possession of the plaintiff over the house in dispute to the exclusion of other co-sharers. It has also been rightly held that in absence of documentary evidence, oral evidence of the plaintiff regarding his exclusive possession over the suit property is not acceptable especially when suit property was inherited by the plaintiff, defendant and other co-sharers equally after the death of their father Sucha Singh. It is settled principle of law that possession of one co-sharer is considered to be possession of all co-sharers. During his cross-examination, the plaintiff admitted that the defendant had never threatened to dispossess him. It has been rightly held that when there is no threat to the plaintiff at the hands of the defendant with regard to dispossession, suit for permanent injunction is not maintainable. 12. Learned counsel for the appellant could not show that the said findings are perverse or illegal or based on misreading, non-reading or misappreciation of the material evidence on record. Consequently, concurrent findings of fact recorded by both the courts below do not warrant interference in regular second appeal. No question of law, muchless substantial question of law, as alleged, arises for adjudication in this second appeal. No other point has been urged. Dismissed in limine. ------------------