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2016 DIGILAW 927 (HP)

Ramesh Chand v. Manohar Singh

2016-05-25

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. 1. The present appeal has been filed against the judgment and decree dated 18.10.2005 passed by the Court of learned District Judge, Shimla in Civil Appeal No. 105-S/13 of 2004 and judgment and decree dated 01.07.2003 passed by the Court of learned Sub Judge 1st Class, Court No. 1, Shimla in Case No. 94/1 of 2001. 2. The appellant before this Court had filed a suit for permanent prohibitory injunction, which was dismissed by the learned trial Court on 01.07.2003 and the appeal filed by him against the said dismissal of the judgment has also been rejected by the first Appellate Court vide its judgment dated 18.10.2005. Therefore, feeling aggrieved by the said two judgments, the appellant-plaintiff has filed the present Regular Second Appeal. 3. This appeal was admitted on 01.09.2006 on the following substantial question of law: “1. Whether the two Courts below have made a serious illegality in dismissing the claim of the appellant for permanent prohibitory injunction in spite of the fact that the agreement Ex.PW02/A clearly records that the appellant-plaintiff had been put in possession by the predecessor-in-interest of the respondents-defendants?” 4. In brief, the facts necessary for adjudication of the appeal are that appellant-plaintiff filed a suit praying for the grant of decree of permanent prohibitory injunction for restraining the defendants perpetually from interfering/encroaching in any manner whatsoever in his peaceful possessory rights over the suit land. The case set up by him was that the predecessor-in-interest of defendants late Shri Gulab Singh Thakur had entered into an agreement with him (plaintiff) in the year 1993 to sell plot No. 5 out of his total 26 plots for a total consideration of Rs. 1,20,000/- and in lieu of this, an agreement was executed on 16.06.1993. Said Shri Gulab Singh Thakur was recorded as gair marusi in the records of rights having all the rights of possession etc. over the land comprised in Khewat/Khatauni No. 45/84 min, Khasra No. 416, 417, 525, 526 and 527, measuring 4982-66 sq. meters as per the latest revenue record & Khata/Khatauni No. 515/574 min, Khasra No. 143, 144, 145 & 146, measuring 6-13 bighas as per the old record. 5. Late Sh. over the land comprised in Khewat/Khatauni No. 45/84 min, Khasra No. 416, 417, 525, 526 and 527, measuring 4982-66 sq. meters as per the latest revenue record & Khata/Khatauni No. 515/574 min, Khasra No. 143, 144, 145 & 146, measuring 6-13 bighas as per the old record. 5. Late Sh. Gulab Singh Thakur got the aforesaid land divided into plots and total 26 plots were carved and got the same sanctioned from the Town & Country Planning Department and by virtue of agreement dated 16.06.1993, he sold plot No. 5, measuring 160.75 mtrs., i.e. 16.44 x 8.22 x 17.81 x 9.59 to the plaintiff and physical possession of the same was handed over to the plaintiff on the spot after receiving full and final payment of the sale consideration. 6. According to the plaintiff, right from the date of the said agreement, he is in possession of the said plot without any interference. When the plaintiff started work of construction of house on the suit land, the defendants with an intention to grab the same, are not allowing him to carry the work. On 30.11.2001, obstruction was caused by certain ladies, who came on the spot when the work of the plaintiff’s construction was in progress. He further averred that neither the defendants nor their family members had any right, title or interest over the suit land and accordingly, in this back ground, he filed the suit praying for a decree of permanent prohibitory injunction in the terms mentioned in the plaint. 7. In their written statement, the defendants stated that late Shri Gulab Singh and Babu Ram were recorded as gair marusi tenants in the suit land in equal shares and it was in the year 1999 that Sh. Babu Ram relinquished his share in favour of late Sh. Gulab Singh and mutation of the same was attested on 16.04.1999. According to the defendants, late Sh. Gulab Singh was in possession of half share of the suit land in the year 1993, therefore, he was neither competent to divide or sell the plots nor he got the sanction of the Town & Country Planning Department. The defendants denied that any agreement was executed by late Shri Gulab Singh with the plaintiff. They further averred that even otherwise, Gulab Singh was not legally competent to enter into an agreement for sale. The defendants denied that any agreement was executed by late Shri Gulab Singh with the plaintiff. They further averred that even otherwise, Gulab Singh was not legally competent to enter into an agreement for sale. They also denied the factum of handing over of physical possession of the suit land to the plaintiff and according to the defendants, they were in possession of the suit land. On these basis, they denied the claim of the plaintiff. 8. On the basis of pleadings of the parties, the learned trial Court framed the following issues:- “1. Whether the plaintiff is entitled for relief of permanent prohibitory injunction as alleged? OPP 2. Whether the plaintiff is estopped from filing the present suit on account of own act, conduct and deed? OPD 3. Whether the suit is not maintainable? OPD 4. Whether the suit is barred by limitation? OPD 5. Relief. 9. On the issues so framed, following were the findings returned on the same by the learned trial Court:- Issue No. 1: No. Issue No. 2: No. Issue No. 3: Yes. Issue No. 4: No. Relief: Suit of the plaintiff is dismissed as per operative portion of judgment. 10. Accordingly, the suit of the plaintiff was dismissed. Learned trial Court held that the plaintiff had filed the suit for permanent prohibitory injunction on the basis of his possessive rights on plot No. 5 based on agreement Ex. PW2/A executed by late Shri Gulab Singh, father of the defendants on 16.06.1993 for consideration of Rs. 1,20,000/-. Learned trial Court held that it was admitted by the plaintiff in his statement that till date his possession was not recorded in any revenue record. Further PW-6 Jai Pal Chauhan, Patwari had also clearly admitted that as per revenue record, the defendants were in possession of the suit land. It is evident from the judgment passed by the learned trial Court that plaintiff had admitted in his statement that though the agreement was executed in the year 1993 and the father of the defendants died in the year 1998, however, in between this period, the plaintiff had not filed any suit for specific performance of contract nor he had issued any notice etc. or filed any suit for recovery of the amount against Sh. Gulab Singh Thakur. or filed any suit for recovery of the amount against Sh. Gulab Singh Thakur. On the basis of the material placed on record before the learned trial Court, it concluded that it was clear that the defendants were in possession of the suit land, i.e. plot No. 5 and plaintiff had failed to prove his possession on the same and, as such, it dismissed the suit filed by the plaintiff. 11. The first Appellate Court upheld the judgment passed by the learned trial Court by holding that the evidence on record does not spell that plaintiff actually was in possession of plot No. 5 after execution of agreement Ex. PW2/A, rather possession appeared to be of the owners of the land. It further held that no title or possession of plot No. 5 vested with the plaintiff and that the possession was of the defendants. It also held that a person may claim injunction against the entire world except the true owners. On these basis, it came to the conclusion that the learned trial Court was justified in dismissing the suit of the plaintiff as the plaintiff failed to prove possession over the suit land. 12. Mr. R.K. Bawa, learned Senior Counsel appearing for the appellant has argued that both the learned Courts below had erred in dismissing the suit of the appellant because it stood established from the record that the appellant was in fact in possession of plot No. 5. According to Mr. Baba, the statements of PW-5 Karam Singh and PW-6 Jai Pal Chauhan in unison were pointer towards the fact that possession of plot No. 5 was with the plaintiff. However, this very important aspect of the matter had been overlooked and ignored by both the Courts below. He has further argued that PW-2 Kali Kumar and PW-3 Anil Dogra were attesting witnesses to the said agreement to sell. As per Mr. Baba, in their statements these witnesses have categorically stated that possession of the suit land was with the plaintiff and this deposition of theirs could not be proved to the contrary by the defendants. He further argued that the sale deed could not be executed when the predecessor-in-interest of the defendants was alive because of the entries in the jamabandi, as per which, the owner of the suit land was the Government. He further argued that the sale deed could not be executed when the predecessor-in-interest of the defendants was alive because of the entries in the jamabandi, as per which, the owner of the suit land was the Government. He has further argued that both the learned Courts below have misread and misconstrued Ex. PW2/A, i.e. agreement to sell, which was entered into between him and Sh. Gulab Singh Thakur. Mr. Baba has drawn my attention to Clause 2 of the said agreement Ex. PW2/A, wherein it is mentioned that the first party has handed over the vacant possession of the land agreed to be sold to the second party on the spot on that date and the second party was at liberty to use the said land in any manner it likes and the second party was at liberty to raise construction on the same. According to Mr. Baba, no further proof of the factum of the suit land being in possession of the plaintiff was required. Therefore, he contended that judgments passed by both the Courts below were erroneous and the findings arrived at by the learned Courts below were not borne out from the record and he accordingly prayed for setting aside the said judgments. He also drew the attention of the Court to Ex. PW1/B, which is a communication addressed by the plaintiff to the Secretary, Revenue Department, in which, according to him, the plaintiff had clearly mentioned that he was in possession of the suit land. 13. Mr. Baba has also referred to Ex. PW1/D, which is a legal notice served by the plaintiff upon the defendants vide which, he had called upon the defendants to execute the sale deed in his favour. 14. On the other hand, Mr. Tek Chand Sharma, learned counsel appearing for the respondents has vehemently argued that there is no merit in the present appeal and the same is liable to be dismissed. According to him, when both the Court below have concluded and that too on the basis of material produced on record that the plaintiff was not in possession of the suit land and it were the defendants who were in possession of the same, then there being a concurrent finding of fact in favour of the defendants, this Court should not disturb the said concurrent finding of fact. According to him, the appellant had failed to demonstrate that there was any perversity in the findings returned by the learned Courts below to the effect that the possession of the suit land was with the defendants. Mr. Sharma has argued that in fact the plaintiff himself had admitted that his possession was nowhere recorded in any revenue record. He further argued that a perusal of the legal notice served upon them by the plaintiff, i.e. Ex. PW1/D will demonstrate that in the said notice there is not even a whisper by the plaintiff to the effect that he is in possession of the suit land. According to him, the suit land is in possession of the respondents/defendants. As the appellant/plaintiff has miserably failed to make out any case for grant of permanent prohibitory injunction against the defendants, the present appeal deserves dismissal. 15. I have heard the learned counsel for the parties and also gone through the records of the case. 16. The substantial question of law on which the present appeal has been admitted has already been quoted above. 17. In view of the substantial question of law framed by this Court, I will first deal with the statements of two attesting witnesses of the agreement Ex. PW-2/A, i.e. PW-2 Kali Kumar and PW-3 Anil Dogra. As per PW-2 Kali Kumar, Gulab Singh executed an agreement with the plaintiff on 16.06.1003 and according to him, the possession of the plot had already been given to the plaintiff by Gulab Singh. A perusal of his cross-examination reveals that he has mentioned therein that Ex. PW2/A already stood prepared before he appended his signatures on the same and he could not tell as to who had typed the same. He has further deposed that he had seen Gulab Singh only on that day. He also mentioned in his cross-examination that he has not gone to the spot, therefore, he cannot say as to who is in possession of the suit property at the spot. 18. Similarly, PW-3 Anil Dogra has deposed that he was also a witness to the agreement entered into between late Sh. Gulab Singh and the plaintiff. He has admitted the suggestion that he has not visited the suit land. 19. 18. Similarly, PW-3 Anil Dogra has deposed that he was also a witness to the agreement entered into between late Sh. Gulab Singh and the plaintiff. He has admitted the suggestion that he has not visited the suit land. 19. Besides them, PW-4 N.S. Chauhan has deposed that plaintiff had purchased the suit land from Gulab Singh in the year 1993 and that Gulab Singh had handed over the possession of plot No. 5 to the plaintiff before the execution of the agreement. In his cross-examination, he has stated that no payment was made in his presence and that agreement was not executed before him. He also stated that he is not aware as to when the possession of the suit land was given to the plaintiff, because he was not present at the time when the possession was handed over to the plaintiff. 20. Now in this background, we will examine the statement of plaintiff (PW-1). According to him, the agreement was executed on 16.06.1993 for an amount of Rs. 1,20,000/-. He has further deposed that Gulab Singh received the payment as agreed upon in the agreement and then he handed over the possession of the suit land to him. In his cross- examination, he has admitted that owner of the land was the Government and late Gulab Singh was gair marusi. He also admitted that Babu Ram, brother of Gulab Singh was also recorded as gair marusi. Incidentally, in his cross-examination, he says that he does not remember as to who had typed the agreement as the same was got typed by Gulab Singh. He admitted that during lifetime of Gulab Singh, he never impressed upon him to execute the sale deed nor he filed any suit for recovery against him. He also admitted that till date in none of the revenue records, this land was entered in his possession. 21. Deposition of one more witness can also be looked into, i.e. one Shri. Karam Singh (PW-5). In his statement, Shri Karam Singh has stated that in June, 1993, Gulab Singh handed over the possession of the suit land to the plaintiff and thereafter in the year 2000, plaintiff and defendants etc. had again gone to the spot and the defendants had handed over the possession of the suit land to the plaintiff. 22. In his statement, Shri Karam Singh has stated that in June, 1993, Gulab Singh handed over the possession of the suit land to the plaintiff and thereafter in the year 2000, plaintiff and defendants etc. had again gone to the spot and the defendants had handed over the possession of the suit land to the plaintiff. 22. In my considered view, the statements of the above witnesses do not inspire any confidence to the effect that the possession of the suit land was ever handed over to the plaintiff by deceased Sh. Gulab Singh. In fact, there are a lot of contradictions in the statements of these witnesses. While one witness says that the possession of the suit land was handed over by Gulab Singh to the plaintiff even before the execution of sale agreement, the deposition of the plaintiff himself is to the contrary. 23. As far as witnesses to the agreement to sell are concerned, none of them have visited the spot and they have clearly stated that they are not in a position to say as to who is actually in possession of the suit property at the spot. In addition, the plaintiff himself has admitted that his possession over the suit property is not entered in any revenue records. On the contrary, the defendants have successfully proved that they are actually in possession of the suit property and this is further evident from the revenue records, in which the defendants are reflected in possession of the suit property. 24. In this view of the matter, in my considered view, the Courts below have committed no perversity in dismissing the suit of the appellant for permanent prohibitory injunction as the plaintiff has failed to prove that he had been put in possession of the suit property by predecessor-in-interest of the respondents/defendant and that he actually was in possession of the suit property at the time when he filed the suit. The substantial question of law is answered accordingly. 25. Therefore, in view of my findings recorded above, the appeal is dismissed. No order as to costs.