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2015 DIGILAW 1551 (HP)

Raj Kumar v. Surender Kumar

2015-10-27

DHARAM CHAND CHAUDHARY

body2015
Judgment : Dharam Chand Chaudhary, Judge Challenge herein is to the judgment and decree dated 16.9.2011, passed by learned Additional District Judge, Mandi, in Civil Appeal No.90 of 2008. 2. The subject matter of dispute in the present lis is a parcel of land entered in Khata/Khatauni No.31 min/6 min, Khasra No.2690/2502, measuring 275.7 square yards, situated in Mohal Joginder Nagar/396, as per the entries in the Jamabandi for the year 1998-99. 3. The suit land has been recorded in the ownership and possession of respondent No.1 Surender Kumar, hereinafter referred to as defendant No.1. The plaintiff claims that he has purchased the same from defendant No.1 through his attorney Shri Rup Lal (PW2) who was appointed as such vide General Power of Attorney dated 27.1.1997 Ext. P2. Said Shri Rup Lal executed sale deed Ext. P1 in favour of the plaintiff on 28.8.2000. The possession of the suit land was handed over to him on the date of execution of General Power of Attorney Ext.P2 and also the payment of sale consideration. He, therefore, was in possession of the suit land. However, respondent No.2, hereinafter referred to as defendant No.2, in connivance with defendant No.1 filed Civil Suit No. 140/2000 in the Court of learned Sub Judge, 1st Class, Joginder Nagar for declaration that he has become owner in possession of the suit land by way of adverse possession and that the entries in the revenue record showing defendant No.1 to be owner in possession thereof are illegal, null and void. Defendant No.1 had admitted such claim of defendant No.2 and as a result thereof the suit was decreed vide judgment and decree Ext.P4 on 16.9.2000 by learned Sub Judge, 1st Class, Joginder Nagar. The judgment and decree being collusive and legally unsustainable has, therefore, been sought to be quashed and set aside. The entries showing defendant No.1 as owner in possession of the suit land have also been sought to be declared wrong, illegal, void and inoperative having no effect to the right, title or interest of the plaintiff, who allegedly is a bonafide purchaser of the suit land. 4. The defendants in the written statement have averred that in the previously instituted Civil suit No.146/2000, defendant No.1 had admitted the claim of defendant No.2 and as such the same was decreed. 4. The defendants in the written statement have averred that in the previously instituted Civil suit No.146/2000, defendant No.1 had admitted the claim of defendant No.2 and as such the same was decreed. Defendant No.2, therefore, has become owner of the suit land and mutation No.1306 on the basis of judgment and decree has also been attested and sanctioned in his favour on 4.1.2000. The execution of General Power of Attorney dated 27.1.1997 Ext.P2 in favour of PW Rup Lal though has been admitted, however, it is averred that the plaintiff failed to make final payment as agreed upon to defendant No.1 and rather filed a Civil Suit No.161/2000 on 7.7.2000, seeking declaration to the effect that he has acquired title in the suit land by way of adverse possession and also sought the decree of permanent prohibitory injunction against defendant No.1. That suit being false and frivolous and filed to grab the suit land was withdrawn on 19.1.2002 at the pretext that the matter stands settled amicably between the parties. Since the plaintiff failed to make payment of the sale consideration, therefore, the General Power of Attorney executed in favour of Rup Lal was revoked by defendant No.1 by serving him with notice dated 1.8.2000. Therefore, said Shri Rup Lal was not competent to execute the sale deed on 27.8.2000 in favour of the plaintiff. Also that the plaintiff was never put in possession of the suit land. Otherwise also, the sale deed qua the suit land has been executed in favour of the plaintiff during the pendency of the suit, hence hit by the principle of lis pendens. The allegations that the judgment and decree in Civil Suit No.146/2000 is the result of collusion and fraud have also been denied being wrong. 5. In counter claims, defendant No.1 has submitted that sale deed dated 27.8.2000 Ext.P1 between him and the plaintiff is illegal, null and void and has been sought to be declared as such. He has sought the decree for permanent prohibitory injunction, restraining the plaintiff from dispossessing him and causing any interference in his possession over the suit land in any manner whatsoever. The plaintiff has filed written statement to the counter claims whereas replication to the written statement, reiterating therein his case as set out in the plaint. 6. Learned trial Court has framed the following issues: 1. The plaintiff has filed written statement to the counter claims whereas replication to the written statement, reiterating therein his case as set out in the plaint. 6. Learned trial Court has framed the following issues: 1. Whether the judgment and decree dated 16.9.2000 is wrong, illegal, void and inoperative, as alleged? OPP 2. Whether the plaintiff is in possession of the suit land? OPP 3. Whether the plaintiff is entitled to the relief of injunction as prayed for? OPD (OPP) 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff has no cause of action? OPD 6. Whether the plaintiff is estopped by his act, conduct and acquiescence to file present suit? OPD 7. Whether the suit is barred by principle of res judicata? OPD 8. Whether the suit is hit by Section 52 of T.P. Act? OPD 9. Whether the sale deed as pleaded in the counter claim is not valid? OPD 10. Whether the defendants are entitled to the relief of declaration as prayed for? OPD. 11. Relief. 7. After holding full trial, learned trial court while answering issue No.1 against the plaintiff has held that judgment and decree dated 16.9.2000 Ext.P4 passed in Civil Suit No.146/2000 is legal, valid and operative. The plaintiff was not found to be in possession of the suit land as is apparent from the findings recorded on issue No.2. He, therefore, was not held entitled to the grant of declaration and also the relief of permanent prohibitory injunction. Issues No.4 to 7 were also answered in favour of the defendants and against the plaintiff as learned trial Court has arrived at a conclusion that the suit is hit by the principles of res judicata and estoppel and also that there exists no cause of action in favour of the plaintiff to file the same, hence not maintainable. While answering issues No.8 and 9, learned trial Court has held that the suit is hit by the principles of lis pendens under Section 52 of the Transfer of Property Act, hence the sale deed Ext.P1 in favour of the plaintiff has been held to be invalid. The suit, therefore, was dismissed. 8. The judgment and decree passed by learned trial Court though was assailed before learned lower appellate Court, however, unsuccessfully, hence the present appeal in this Court. 9. The suit, therefore, was dismissed. 8. The judgment and decree passed by learned trial Court though was assailed before learned lower appellate Court, however, unsuccessfully, hence the present appeal in this Court. 9. The challenge to the impugned judgment and decree is on the grounds, inter alia, that the plaintiff has purchased the suit land on payment of sale consideration. The decree Ext.P4 in Civil Suit No.146/2000 being collusive should have not been taken into consideration to deny the claim of the plaintiff in the suit. No doubt the suit he previously instituted was withdrawn by him on 19.1.2002, however, with permission to file fresh suit vide order Ext.PX. Therefore, he had enforceable cause of action to file fresh suit, which was neither hit by the principles of res judicata nor estoppel, however, both the Courts below have erroneously discarded his claim well established from the evidence available on record. Both the Courts below have based the findings on misreading of oral and documentary evidence. He had purchased the suit land vide registered sale deed dated 28.8.2000 Ext.P1. The decree passed by learned Sub Judge 1st Class, Joginder Nagar, in favour of defendant No.2, being based on admission, was collusive, hence legally unsustainable. The counter claims filed by defendant No.2 being without any basis were not maintainable. The only conclusion which in the given facts and circumstances could have been drawn was that the decree obtained by defendant No.2 being collusive could have not been relied upon and rather ignored from consideration. The findings that the particulars of misrepresentation and fraud have not been pleaded are not stated to be as per the evidence available on record. Learned lower appellate Court has erroneously brushed aside the certified copy of the sale deed on the ground that without laying foundation for leading secondary evidence, the same is inadmissible in evidence. Learned lower appellate Court should have allowed the plaintiff to prove this document by leading secondary evidence. The denial thereto has resulted in miscarriage of justice to him. He being not a party to the suit filed by defendant No.2 was not bound by the judgment and decree passed in the said suit. Therefore, the entire approach of both the Courts is stated to be erroneous. 10. The appeal has been admitted on the following substantial questions of law: 1. He being not a party to the suit filed by defendant No.2 was not bound by the judgment and decree passed in the said suit. Therefore, the entire approach of both the Courts is stated to be erroneous. 10. The appeal has been admitted on the following substantial questions of law: 1. Whether the findings of the Court below are perverse, based on misreading of oral and documentary evidence and the pleadings of the parties and drawing of wrong inferences, particularly the sale deed Ext.P1 and documents P-4, P-5 , P-6 and P-7. 2. Whether the findings are vitiated in not considering the certified copy of sale deed without production of original when case for leading secondary evidence was also made out? 3. Whether the findings that the decree was not collusive and vitiated for lack of particulars and evidence of fraud is sustainable in law and contrary to the evidence on record? 11. Mr. K.D. Sood, learned Senior Advocate, assisted by Mr. Rajnish K. Lall, Advocate, has strenuously contended that the appellant-plaintiff has acquired suit land by way of sale thereof by respondent-defendant No.1 on payment of sale consideration and as such he is now owner in possession thereof. On the other hand, decree dated 16.9.2000 Ext.P4 in Civil Suit No.146/2000 being collusive confers no right, title or interest upon defendant No.2 qua the suit land. According to Mr. Sood, otherwise also, title in the suit land by way of adverse possession could have not been claimed by defendant No.2 in Civil Suit No.146/2000, because no such declaration can be sought on the basis of adverse possession and rather the plea of adverse possession can be raised as a shield and not as a sword. In order to buttress the arguments so addressed, reliance has been placed on the judgment of Apex Court in Gurdwara Sahib Vs. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 . It has, therefore, been urged that on reversal of the judgment and decree passed by both Courts below the suit filed by the appellant-plaintiff be decreed. 12. Mr. B.S. Chauhan, learned Senior Advocate while repelling the arguments addressed on behalf of the appellant-plaintiff has urged that in view of the evidence available on record, no case is made out in favour of the appellant-plaintiff and as such the suit has rightly been dismissed. 12. Mr. B.S. Chauhan, learned Senior Advocate while repelling the arguments addressed on behalf of the appellant-plaintiff has urged that in view of the evidence available on record, no case is made out in favour of the appellant-plaintiff and as such the suit has rightly been dismissed. It has been pointed out from the record that the sale deed Ext.P1 has been fabricated and managed in connivance with PW2 Rup Lal and also the revenue staff. Otherwise also, the alleged sale of the suit land during the pendency of Civil Suit No.146/2000 is hit by the principles of lis pendens. Both the Courts below, therefore, are stated to have not committed any illegality or irregularity while dismissing the suit. 13. Now if coming to the adjudication of the substantial questions of law in the light of the evidence available on record and the arguments addressed by learned counsel representing the parties on both sides, no question of law, what to speak of substantial questions of law as formulated, arises for determination in this appeal. Whether learned lower appellate Court has committed illegality or irregularity in not placing reliance on the copy of sale deed Ext.P1 for want of the original thereof, again the answer would be in negative for the reason that the plaintiff should have produced in evidence the original sale deed. No explanation is forthcoming as to why the original sale deed has not been produced in evidence. Had the same been lost or misplaced he should have filed an application and make out a case for seeking permission to produce the same in evidence by leading secondary evidence. Interestingly enough, the executant i.e. defendant No.1 while in the witness box was only shown the photocopy of this document because even the certified copy thereof was also produced in evidence by learned counsel in his own statement. Learned lower appellate Court while taking note of the law laid down in Kashinath Shankarappa Vs. New Akot Cotton Ginning and Pressing Co. Ltd., AIR 1951 NaG 255 and Badhawa Ram Vs. Akbar Ali, AIR 1927 Lah 817, has rightly concluded that the copy of sale deed on the basis whereof the plaintiff claims himself to be owner in possession of the suit land is not at all proved in accordance with law. New Akot Cotton Ginning and Pressing Co. Ltd., AIR 1951 NaG 255 and Badhawa Ram Vs. Akbar Ali, AIR 1927 Lah 817, has rightly concluded that the copy of sale deed on the basis whereof the plaintiff claims himself to be owner in possession of the suit land is not at all proved in accordance with law. Nothing has been brought to the notice of this Court during the course of arguments as to how the findings so recorded by learned lower appellate Court are perverse or legally unsustainable. 14. The 3rd substantial question of law pertains to the collusion between defendant No.2 and defendant No.1 in the previously instituted Civil Suit No.146/2000 by defendant No.2 against defendant No.1. The appellant-plaintiff claims that full particulars qua collusion and fraud played by the defendants were disclosed in the pleadings and the finding to the contrary that no such particulars were pleaded, is stated to be the result of mis-appreciation of the evidence produced qua this aspect of the matter. Learned lower appellate Court while discarding the plaintiff’s case qua there being collusion between the defendants and fraud played by them against him, has held that the plaintiff was required to plead and prove that there was an arrangement between the defendants to institute a suit against the other and then to obtain a decree in collusion with each other to defeat the claim of the plaintiff. Nothing qua any such secret arrangement between the defendants has either been pleaded or proved on record. Merely that defendant No.1 should have not admitted the claim of defendant No.2 in Civil Suit No.146/2000 after receipt of the sale consideration from the plaintiff is not sufficient to establish the collusion. The case as pleaded by the plaintiff rather establishes the breach of obligation towards the plaintiff. Plaintiff’s case that learned counsel representing the defendants was from the same chambers of which the counsel representing defendant No.2 in Civil Suit No.146/2000 also cannot be taken as one of the circumstances to arrive at a conclusion that both the defendants were in collusion with each other in that suit. Learned lower appellate Court has appreciated this aspect of plaintiff’s case in its right perspective and also taking into consideration the law laid down by the Apex Court in V.S. Vishwavidyala Vs. Raj Kumar, AIR 1977 SC 615 and Sneh Gupta Vs. Learned lower appellate Court has appreciated this aspect of plaintiff’s case in its right perspective and also taking into consideration the law laid down by the Apex Court in V.S. Vishwavidyala Vs. Raj Kumar, AIR 1977 SC 615 and Sneh Gupta Vs. Devi Sarup, 2009 (6) SCC 194 , Nothing to the contrary has been brought to the notice of this Court during the course of arguments. Learned lower appellate Court has rightly interpreted the law laid down by the Apex Court in Nagu Bai Ammal Vs. B. Shama Rao, AIR 1956 SC 593 , because no evidence qua secret arrangement between the defendants to prove that Civil Suit No.146/2000 was filed by them in connivance with each other was brought on record and as such, the plea raised by the plaintiff has rightly been rejected. 15. Now if coming to the 1st substantial question of law that on account of misappreciation, misconstruction and misreading of the evidence available on record the judgment and decree impugned in this appeal is vitiated, is also of no substance because both the Courts below have dismissed the suit on proper appreciation of the given facts and circumstances of this case and the evidence available on record. On the other hand, the case as pleaded by the plaintiff is highly doubtful right from the very beginning. No doubt, vide General Power of Attorney Ext.P2 Shri Rup Lal was appointed by defendant No.1 as his attorney on 27.1.1997 to sell the suit property. However, what prevented said Shri Rup Lal and for that matter the plaintiff to execute the sale deed promptly and without loss of any time, particularly when the sale consideration, as per the evidence of the plaintiff while in the witness box as PW1 and said Shri Rup Lal PW2, was paid to defendant No.1 on the day of execution of the Power of Attorney itself. Not only this, had the suit land been purchased by the plaintiff, where was the occasion for him to have filed Civil Suit No.161/2000 against defendant No.1 for declaration to the effect that he is in possession of the suit land and has become owner thereof by way of adverse possession. Not only this, had the suit land been purchased by the plaintiff, where was the occasion for him to have filed Civil Suit No.161/2000 against defendant No.1 for declaration to the effect that he is in possession of the suit land and has become owner thereof by way of adverse possession. It is also not known as to what amicable settlement was arrived at between the plaintiff and defendant No.1 during the course of proceedings in Civil Suit No.161/2000 because that suit was ultimately dismissed as withdrawn vide judgment Ext.PX, of course with liberty to the plaintiff to file fresh suit on the same cause of action. If the plaintiff had purchased this land from defendant No.1, where was the occasion for him to have sought the declaration that he has become owner thereof by way of adverse possession. Not only this, but the Civil Suit No.146/2000 filed by defendant No.2 against defendant No.1 was decreed on 16.9.2000, vide judgment Ext.P4 and the alleged sale deed having been executed on 28.8.2000, is during the pendency of the said suit, hence hit by the principle of lis pendens. No doubt the plaintiff claims that he had no notice of the filing of Civil Suit No.146/2000, however, hardly of any help to his case for the reason that learned lower appellate Court after taking note of the legal position qua this aspect of the matter has concluded that the transferee pendente lite is bound by a decree and the plea that he was not a party to the suit, is immaterial. 16. Otherwise also, as already pointed out when the General Power of Attorney was executed in favour of PW-2 Rup Lal on 27.1.1997, It is not understandable as to why the execution of the sale deed was delayed considerably i.e. till 28.8.2000. Therefore, in the given facts and circumstances, the plaintiff’s case is highly doubtful and as such he cannot be said to have acquired the suit land by way of sale deed Ext.P1. 17. Now if coming to the law laid down by the Apex Court in Gurdwara Sahib’s case cited supra, it has been held therein that the plea of adverse possession can be used as a shield and not as a sword. Meaning thereby that the plaintiff cannot seek declaration on the plea of adverse possession, however, the defendant can raise such plea in his defence. Meaning thereby that the plaintiff cannot seek declaration on the plea of adverse possession, however, the defendant can raise such plea in his defence. The law laid down by the Apex Court is distinguishable in the case in hand because defendant No.1, the owner of the suit land, did not agitate the claim of defendant No.2 as laid in Civil Suit No.146/2000. Otherwise also, in Gurdwara Sahib’s case, no doubt the declaration that the plaintiff has acquired title in the suit land on account of he being in adverse possession of the suit property was declined with the observation that the plaintiff cannot raise the plea of adverse possession to seek any such declaration, however, being found to be in possession of the suit property, it was further held that the plaintiff’s possession over the suit property cannot be disturbed except by due process of law. The plaintiff being in possession of the suit property, the decree for permanent prohibitory injunction was granted against the defendant with liberty reserved to the plaintiff to raise the plea of adverse possession in defence in the event of suit for possession of the suit property is filed by the defendants. The relevant portion of this judgment is reproduced here-as-under: “10. As the appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession. Needless to mention at this stage, the appellant shall also be at liberty to plead that findings of issue No.1 to the effect that the appellant is in possession of adverse possession since 13.4.1952 operates as resjudicata. Subject to this clarification, the appeal is dismissed.” 18. Therefore, in view of the ratio of the judgment ibid, the plaintiff has no enforceable cause of action against the defendants as he has miserably failed to prove his possession over the suit land. Subject to this clarification, the appeal is dismissed.” 18. Therefore, in view of the ratio of the judgment ibid, the plaintiff has no enforceable cause of action against the defendants as he has miserably failed to prove his possession over the suit land. Defendant No.2, on the other hand, has rightly been held in possession of the suit land on appreciation of the evidence available on record in its right perspective. Therefore, at the most, the plaintiff can file suit against defendant No.2 for possession and in that event, the latter may raise the plea of adverse possession in his defence. It is thus seen that the ratio of the judgment of Apex Court in Gurdwara Sahib’s case supra is also of no help to the plaintiff’s case. 19. In view of what has been said hereinabove, both Courts below have appreciated the evidence available on record in its right perspective and there is no question of the findings as recorded being perverse or vitiated on this score also. 20. For all the reasons hereinabove, the appeal fails and the same is accordingly dismissed. Consequently, the judgment and decree passed by learned lower appellate court is affirmed. There is, however, no order so as to costs.