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2015 DIGILAW 3379 (ALL)

Amil v. Mohammad Umar

2015-10-28

PRAMOD KUMAR SRIVASTAVA

body2015
JUDGMENT Pramod Kumar Srivastava, J. Heard learned counsel for the appellant and perused the record. 2. The plaintiff-appellant had filed Original Suit No. 732 of 2008 (Amil Vs. Mohd. Umar and another) with averment that the owner of the disputed property is defendant no.-1 Mohd. Umar, who had orally agreed to sell this property to plaintiff and in this regard plaintiff had given Rs. two lacs in in response to which defendant no.-1 had executed a receipt dated 08.05.2007 and handed over to the plaintiff along with the possession of the disputed land. After that plaintiff is continuing in possession of disputed agricultural plot. The plaintiff was willing and ready to perform his part of said contract and pay remaining Rs. 20,000/- for execution of registered sale-deed. But defendant had delayed the matter without any reason and had not executed sale-deed. On 15.11.2008, defendant no.-1 visited the disputed plot and informed that he had sold the said property to defendant no.-2 Smt. Sahana Khatoon. They had asked the plaintiff to vacate the disputed land and threatened to interfere in his possession, therefore, on the basis of this cause of action the plaintiff had filed the suit for permanent injunction with relief that defendant be restrained from evicting him from the disputed land otherwise than in accordance with law; and they be directed not to transfer the disputed land and interfere in peaceful possession of plaintiff. 3. Defendants had filed written-statement in which they had that no agreement to sell was ever executed between the plaintiff and defendant no.-1 and alleged agreement to sell dated 08.05.2007 is forged. Defendant no.-1 was owner and bhumidhar of disputed land and plaintiff has no right over it. Defendant no.-1 had sold a portion of disputed land to defendant no.-2. Plaintiff's suit is liable to be dismissed. 4. After affording opportunity of hearing, the trial court had dismissed the suit of plaintiff by judgment dated 27.05.2013, against which Civil Appeal no. 64/2013 (Amil Vs. Mohd. Umar and another) was preferred by plaintiff, but this appeal was also dismissed by judgment dated 11.09.2015 of first appellate court. Aggrieved by these judgments of two courts below, present second appeal has been preferred by plaintiff. 5. It is settled legal position that no right can be accrued over any disputed property except by registered deed. Mohd. Umar and another) was preferred by plaintiff, but this appeal was also dismissed by judgment dated 11.09.2015 of first appellate court. Aggrieved by these judgments of two courts below, present second appeal has been preferred by plaintiff. 5. It is settled legal position that no right can be accrued over any disputed property except by registered deed. The plaintiff's suit is based on alleged right accrued on the basis of unregistered agreement to sell. Such agreement to sell cannot create any right of plaintiff-appellant over any immovable property because it is unregistered. This fact has been admitted by the learned counsel for the appellant during arguments who contended that for this reason only the suit for specific purpose of contract had not been filed. He contended that the appellant's right has been created on the basis of receipt dated 08.05.2007 mentioned in plaint. But this contention is not acceptable because said alleged receipt being unregistered document cannot create any right over any immovable property. 6. Learned counsel for the appellant contended that the appellant is in permissive possession of disputed agricultural property, therefore he cannot be evicted from it otherwise than in accordance with law. Learned counsel for the appellant. He also contended that although relief of restraining the defendants and respondents from transferring the disputed property may be declined, but since the appellant has entered into into possession of disputed property in a peaceful way and after permission of its owner defendant no.-1, therefore, his entering into possession in a peaceful and permissive way should be respected and at least he should not be evicted otherwise than the procedural establish of law. In this regard a perusal of two courts below reveal that none of the court had given finding about actual physical possession of appellant over the disputed property. In second appeal, disputed matter of actual physical possession cannot be decided. 7. But it has to be considered that if the plaintiff-appellant is considered to being in possession of disputed property owned by defendant-respondents then can he get relief of permanent injunction on the basis of his possession. In present matter the two courts below had not recognized the actual possession of appellant over disputed property. 7. But it has to be considered that if the plaintiff-appellant is considered to being in possession of disputed property owned by defendant-respondents then can he get relief of permanent injunction on the basis of his possession. In present matter the two courts below had not recognized the actual possession of appellant over disputed property. In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769 the Apex Court had held : “The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” 8. If, for the sake of argument and for sometime, it is accepted that this plaint case is correct that plaintiff has entered into possession of disputed land after getting permitted by true owner (defendant no.-1) then cause of action for the original suit as well as long litigation are the proof of the fact that said alleged permission has been revoked when plaintiff/ appellant was asked to vacate the said property. It has been specifically mentioned that cause of action arose and when defendants had asked plaintiff to vacate disputed land, otherwise, he would be evicted. Thus, if the plaintiff appellant had entered in possession as alleged in plaint, then due to his alleged permission at thetime of such entry, his position was that of licensee; but when such license was revoked because of the cause of action of the original suit, then after revocation of such license, his possession and position over the suit property had become that of trespasser. 9. It is settled legal position that trespasser has no right to seek injunction against the true owner, therefore even if it is accepted that facts relating to plaint are totally correct, in that case also plaintiff-appellant is not entitled to relief for permanent injunction against true owner, that is defendants/ respondents; and his suit was liable to be dismissed. In present case the two courts below had not found evidence of appellant's possession over disputed property. In present case the two courts below had not found evidence of appellant's possession over disputed property. Both the courts below had given concurrent findings on this point. 10. On examination of the reasoning and finding recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, based upon proper appreciation of the entire evidence on record and had been passed after application of mind. Question of law involved in this case are not substantial question of law. In any case of factual reasons or for legal reasons, the plaintiff- appellant has no right to get any relief against defendants-respondents. No perversity or infirmity is found in the concurrent findings of fact recorded by the courts below that may require interference in second appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained. 11. In view of the above, this Court finds that no substantial question of law arises in this appeal, therefore, the second appeal is dismissed.