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2014 DIGILAW 559 (RAJ)

LRs of Govind Ram v. Smt. Madu

2014-02-25

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against judgment and decree dated 22.09.2012 passed by Additional District Judge No.1, Jodhpur Metropolitan, whereby, the appeal filed by the appellants against judgment and decree dated 02.08.2008 passed by Additional Civil Judge (Senior Division) No.3, Jodhpur has been upheld. 2. The facts in brief may be noticed thus : the plaintiffs - wife and sons of late Shri Binja Ram filed a suit for possession and damages against Govind Ram on 28.04.1997 with the averments that the suit property belonging to plaintiffs situated at Lajpat Rai Colony, Jodhpur, a plot was allotted by Urban Improvement Trust, Jodhpur ('the U.I.T.') on 23.08.1969 to late Shri Binja Ram; he deposited the amount of allotment whereon; the U.I.T. issued licence dated 18.12.1973 and since then the plaintiffs became owner and possessed the said plot; as Binja Ram died at young age, no permanent construction could take place, however, the plot was being used for storing house hold goods and on social occasions; it was claimed that in the year 1996 Govind Ram trespassed on the said plot after breaking locks, regarding which, report was lodged with the police, however, of no consequence and, as such, the defendant/s were in possession as trespassers; the defendants have no right or title regarding the said property; the plaintiffs were in possession; damages were claimed @ Rs. 300/- per month and injunction was sought restraining the defendants from raising construction. 3. A written statement was filed by the defendants and the averments made in the plaint were denied; it was claimed that the suit property did not belong to the plaintiffs; a plot was allotted by U.I.T. and licence was issued to Binja Ram, however, Binja Ram sold the said plot on 03.08.1978 and received consideration of Rs. 3. A written statement was filed by the defendants and the averments made in the plaint were denied; it was claimed that the suit property did not belong to the plaintiffs; a plot was allotted by U.I.T. and licence was issued to Binja Ram, however, Binja Ram sold the said plot on 03.08.1978 and received consideration of Rs. 4,000/- and executed agreement on 03.08.1978 and handed over possession of the said plot and since then the defendants were in possession of the suit plot; the plaintiffs were minor at the relevant time and, therefore, on their behalf their natural guardians mother and father placed thumb impressions; defendants constructed a room on the plot in 1996 and the averments regarding trespass in 1996 are incorrect; the plot was being used by the defendants since 03.08.1978; the report lodged with the police was false and, therefore, the police did not act on it; the plaintiffs were not entitled for any damages. 4. In additional pleas, it was stated that the defendants were in possession since 03.08.1978 when they purchased the plot by way of agreement and in 1996 raised construction; the plaintiffs were aware about the said facts and they did not raise any objection and the suit was filed on incorrect/false facts and, therefore, the defendants were entitled to special cost of Rs. 10,000/-; the valuation of the plot is incorrect and insufficient Court fees has been paid; the suit was barred by limitation and prayed that the suit be dismissed. 5. A replication was filed by the plaintiffs and the facts about sale of plot were denied; it was alleged that the agreement was a forged document, which was not admissible in evidence and the document does not bear signatures of Binja Ram. 6. The trial court framed nine issues. On behalf of plaintiffs four witnesses were examined and two documents were exhibited. On behalf of defendants also four witnesses were examined and one document was exhibited. 7. After hearing the parties, the trial court first of all decided issue No.5, which pertained to execution of agreement of sale of the plot in dispute to the defendants on 03.08.1978 for Rs. 4,000/-. On behalf of defendants also four witnesses were examined and one document was exhibited. 7. After hearing the parties, the trial court first of all decided issue No.5, which pertained to execution of agreement of sale of the plot in dispute to the defendants on 03.08.1978 for Rs. 4,000/-. After analysing the oral evidence and noticing that while the licence (Exhibit-1) bears the signatures of Binja Ram, the so called agreement (Exhibit-D/1) did not bear the signatures of Binja Ram and the thumb impression, which was claimed to be that of Binja Ram, no indication was made, whereas, indications regarding all other thumb impressions were specifically indicated, the trial court came to the conclusion that the defendants have failed to prove that on 03.08.1978 Binja Ram executed agreement in their favour and on receiving Rs. 4,000/- handed over possession to the defendants. The trial court also came to the conclusion that the plaintiffs were in possession of the suit plot till 1996; the defendants trespassed on the suit plot in April, 1996; the defendants failed to prove their possession since 1978. The valuation of the suit was appropriate and the suit was within limitation; the plaintiffs were entitled to mesne profit @ Rs. 300/- per month, the defendants were not entitled for special cost of Rs. 10,000/- and, ultimately, decreed the suit filed by the plaintiffs for possession and directed the defendants to handover possession of the suit property within two months along with mesne profit. 8. Feeling aggrieved, the appellants filed appeal before the District Judge, Jodhpur Metropolitan, which was transferred to the Court of Additional District Judge No.1, Jodhpur Metropolitan, who after hearing the parties by impugned judgment came to the conclusion that the finding recorded by the trial court on issue No.5 did not require any interference and as rest of the issues were all dependent on the finding on issue No.5, the same also did not require any interference and, consequently, dismissed the appeal. 9. It was submitted by learned counsel for the appellant that both the courts below fell in error in coming to the conclusion that the agreement dated 03.08.1978 was not executed by Binja Ram. 9. It was submitted by learned counsel for the appellant that both the courts below fell in error in coming to the conclusion that the agreement dated 03.08.1978 was not executed by Binja Ram. It was submitted that sufficient evidence was available on record to prove that the document was in fact executed by Binja Ram, however, for non-consideration of the said evidence, the finding recorded by both the courts below is wholly perverse. The fact that the agreement did not bear signatures of Binja Ram and only had his thumb impression has been taken as a sole ground to come to a conclusion that the document was not executed by Binja Ram, the very fact that Binja Ram used to put signatures itself has not proved and it is not proved from Exhibit 1 that the said document bear signatures of Binja Ram. Alternatively, it was submitted that it is not necessary for a person to put his signatures on every document, it depends on his choice as to whether he puts his signatures or thumb impressions and merely because on document (Exhibit-D/1) thumb impression was placed by Binja Ram, it cannot be said that the document was not executed by him. It was further submitted that in any case the document (Exhibit-1) bears the thumb impressions of plaintiff Smt. Madu and Ganesh Ram and, therefore, the plaintiffs were not entitled to maintain the suit in terms of Section 13 of the Specific Relief Act, 1963 ('the Act'). 10. Per contra, learned counsel for the respondents submitted that no question of law is involved in the present appeal and the same was not maintainable. Both the courts below have concurrently recorded the findings of fact that the alleged agreement (Exhibit-D/1) was not executed by Binja Ram and the said finding being based on evidence available on record does not call for any interference. It was prayed that the appeal be dismissed. 11. I have considered the rival submissions made at the Bar. 12. The suit was filed by the plaintiffs on a licence dated 18.12.1973 issued by the U.I.T. in favour of Binja Ram, the said document Exhibit-1 bears signatures of the Secretary, U.I.T. and that of Binja Ram. It was prayed that the appeal be dismissed. 11. I have considered the rival submissions made at the Bar. 12. The suit was filed by the plaintiffs on a licence dated 18.12.1973 issued by the U.I.T. in favour of Binja Ram, the said document Exhibit-1 bears signatures of the Secretary, U.I.T. and that of Binja Ram. Even the endorsement on the back of stamp paper, on which, the licence has been transcribed indicates sale of the said stamp paper to Binja Ram and bears his signatures as purchaser. The defendants in their statement did not deny the ownership of Binja Ram but raised a defence that the suit property was purchased by them for a sum of Rs. 4,000/- from Binja Ram and an agreement dated 03.08.1978 was executed in this regard between the parties and the possession thereof was handed over to the defendants. The said agreement, which is said to have been executed by Binja Ram in favour of Govind Ram bears signatures said to have been that of Ganesh Ram, thumb impression of Smt. Madi (Madu), thumb impressions of Girdhari and Amroji as witnesses and further thumb impressions of Shivji and Bhanroji and bears one more thumb impression without indicating as to whose thumb impression it was, regarding which, it is claimed by defendants that the said thumb impression was that of Binja Ram. It goes against normal human conduct that a person who can put his signatures and has in fact put his signatures on the licence (Exhibit-1), would put his thumb impression on other document, unless the same is statutorily required. Further, it is also surprising that while names of all other persons, who have allegedly put their thumb impressions on Exhibit-D/1 have been indicated, qua the so called thumb impression of Binja Ram, no such indication has been made. Further, the placing of the thumb impression on the document also is wholly abnormal as while the other thumb impressions and signatures have been placed above the alleged thumb impressions of Binja Ram, the said thumb impression appears at the bottom, not only this, DW-1 Govind Ram admitted in his cross-examination that signatures A to B on Exhibit-1 were that of Binja Ram. In these circumstances, the execution of the document (Exhibit-D/1) by Binja Ram appears to be wholly suspicious and doubtful. Even the evidence which has come on record is wholly conflicting. In these circumstances, the execution of the document (Exhibit-D/1) by Binja Ram appears to be wholly suspicious and doubtful. Even the evidence which has come on record is wholly conflicting. While one of the witnesses DW-3 Bhiyan Ram claims that Binja Ram was not well at the time of execution and was confined to bed, the claim of the defendants was that the document (Exhibit-D/1) was executed in the Court premises, which itself is wholly contradictory. 13. So far as the submissions of learned counsel for the appellant regarding Section 13 of the Act is concerned, Section 13 provides for the rights of a purchaser or lessee against person with no title or imperfect title and mandates that where a person contracts to sell or let certain immovable property having no title or only a imperfect title, the purchaser or lessee has, inter alia, the right that if the vendor or lessor has subsequent to the contract acquired any interest in the property, the purchaser or lessee may compel him to make the contract out of such interest. 14. It would be seen that it is claimed by the defendants that the document (Exhibit-D/1), even if, it does not bear the thumb impression of Binja Ram, bears signatures of Ganesh Ram plaintiff No.2 and thumb impression of Smt. Madu plaintiff No.1 and, therefore, as the document when executed by them, they had imperfect title or no title, but on account of death of Binja Ram as the property now vests in them, the defendants are entitled to enforce the said agreement against them and, therefore, the suit was not maintainable. The said submission is wholly without substance as besides the fact that there is no admission regarding the signatures of Ganesh Ram and thumb impression of Smt. Madu, the alleged agreement was executed by Binja Ram only and the plaintiffs have not joined him as executants of the said document and, therefore, it cannot be said that there was any contract on part of the said plaintiffs Smt. Madu and Ganesh Ram to sell the said plot and, consequently, the provisions of Section 13 of the Act are wholly inapplicable. 15. In view of the above discussions, the findings of fact recorded by both the courts below cannot be said to be perverse and no substantial question of law arises for consideration of this Court. 16. 15. In view of the above discussions, the findings of fact recorded by both the courts below cannot be said to be perverse and no substantial question of law arises for consideration of this Court. 16. Consequently, the appeal filed by the appellants is dismissed. No costs.Appeal Dismissed. *******