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2017 DIGILAW 14 (HP)

Sita Ram v. Asha Devi

2017-01-04

TARLOK SINGH CHAUHAN

body2017
JUDGMENT : Tarlok Singh Chauhan, J. This Regular Second Appeal, at the instance of defendant No.1, takes exception to the judgment and decree passed by the learned Additional District and Sessions Judge, Kangra whereby he set aside the judgment and decree passed by the learned trial court 1 Whether reporters of the local papers may be allowed to see the judgment? and thereby decreed the suit filed by the plaintiff for permanent prohibitory injunction. 2. The facts, as are necessary for the disposal of this appeal, are that the plaintiff brought a suit for permanent prohibitory injunction to the effect that he is owner in possession of the land comprised in Khata No.88 min, Khatauni No.97 min, Khasra No.105 measuring 0-17 marlas to the extent of th share situate in Tikka Kamlahu, Tappa Balduhak, Tehsil Nadaun, District Hamirpur, H.P. and was entitled to remain in possession as owner in future. Defendant No.1 alienated the aforesaid land, i.e. suit land to the plaintiff on 9.8.1988 for a sum of Rs. 7,000/- and on that day itself, i.e. 9.8.1988, he even delivered the possession of the land to the plaintiff and ever since then he was owner in possession of the land. This fact stands duly incorporated in the Rapat No.500. It is averred that defendant Nos. 2 and 3 were trying to raise a construction over the suit land in collusion and in league with defendant No.1 and, therefore, they be restrained from doing so. Hence, the suit. 3. Defendant Nos. 1 & 3 and 2 contested the suit by filing separate written statements. 4. As regards defendant Nos. 1 and 3, the suit was questioned on the ground of maintainability and estoppel and on merits, it was averred that the sale deed, if any, is illegal, null and void and not binding upon them. It was further averred that defendant No.1 has laid foundation in the suit land, whereas the plaintiff was neither owner nor in possession of the suit land and was making false allegations. 5. On the other hand, defendant No.2 contested the suit by claiming that neither he has concern with the suit land nor ever has he even threatened to raise construction or interfere in the possession and prayed that the suit be dismissed with special costs under section 35-A of the Code of Civil Procedure. 6. 5. On the other hand, defendant No.2 contested the suit by claiming that neither he has concern with the suit land nor ever has he even threatened to raise construction or interfere in the possession and prayed that the suit be dismissed with special costs under section 35-A of the Code of Civil Procedure. 6. The plaintiff filed replication reiterating the contents of plaint and at the same time denied the contents of written statements. 7. From the pleadings of the parties, learned trial court on 22.2.1994 framed the following issues: 1. "Whether the plaintiff is entitled for decree of permanent prohibitory injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiff is estopped to file the suit by his act and conduct? OPD 4. Whether the defendant No.2 is entitled to special costs under section 35-A CPC? OPD 5. Relief." 8. After recording the evidence and evaluating the same, learned trial court dismissed the suit constraining the plaintiff to file an appeal before the first appellate court, which has been allowed vide judgment and decree dated 22.3.2003. Aggrieved by the judgment and decree passed by the first appellate court, defendant No.1 has filed the instant appeal and the same vide order dated 12.4.2004 was ordered to be admitted on the following substantial questions of law: 1. "Whether the lower appellate Court has correctly interpreted and read in evidence the agreement Ex.P- 1? 2. Whether benefit o section 53-A of Transfer of Property Act could be extended to a party when such a plea has not been taken in the pleadings?" Substantial Question of Law No.1: 9. At the outset it may be noticed that the entire case of the parties hinges around the Ikrarnama (agreement Ex.P-1), which admittedly is unregistered document. It is further not in dispute that by way of this document, the plaintiff not only claims to have purchased the suit land, but also claims to have been in possession thereof. 10. There can be no gainsaying that Ex.P-1 cannot be taken as evidence of sale for want of stamp duty and registration. Nevertheless, it can be relied upon for collateral purposes such as proving of delivery of possession and the status of the plaintiff, i.e. his possession is lawful or unlawful. 11. 10. There can be no gainsaying that Ex.P-1 cannot be taken as evidence of sale for want of stamp duty and registration. Nevertheless, it can be relied upon for collateral purposes such as proving of delivery of possession and the status of the plaintiff, i.e. his possession is lawful or unlawful. 11. This was precisely what the Hon'ble Supreme Court held in Bondar Singh and others v. Nihal Singh and others, (2003) 4 SCC 161 , wherein it has held as under: "[5] The main question as we have already noted is the question of continuous possession of the plaintiffs over the suit lands. The sale deed dated 9-5-1931 by Fakir Chand, father of the defendants in favour of Tola Singh, the predecessor interest of the plaintiff, is an admitted document in the sense its execution is not in dispute. The only defence set up against said document is that it is unstamped and unregistered and therefore it cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land." 12. In such, circumstances, learned lower appellate court committed no irregularity much less illegality in relying upon Ex.P-1 to determine the nature of the possession of the respondent. 13. Before embarking upon the fact of Ex.P-1, it would be necessary to refer to the pleadings of the parties. 14. The plaintiff had specifically pleaded that defendant No.1 had executed Ex.P-1 after receiving a sum of Rs. 7,000/-. Defendant No.1 in his written statement put up only sham denial stating that he had not sold any portion of the suit land and the alleged sale deed was null and void. Thus, in these given circumstances, learned first appellate court further committed no illegality by drawing inference that the execution of the document was in fact not disputed by defendant No.1. 15. That apart, it would be noticed that defendant No.1 had specifically admitted his signatures on Ex.P-1. Thus, in these given circumstances, learned first appellate court further committed no illegality by drawing inference that the execution of the document was in fact not disputed by defendant No.1. 15. That apart, it would be noticed that defendant No.1 had specifically admitted his signatures on Ex.P-1. His only defence was that the land had been agreed to be sold for Rs. 20,000/- out of which Rs. 7,000/- were received by him at the time of agreement, whereas the remaining amount was to be paid at the time of registration of the sale deed. 16. Now, adverting to the contents of Ex.P-1, it would be noticed that it is clearly mentioned therein that the possession of the suit land stands delivered to the plaintiff at the time of its execution. 17. Even otherwise, it has not been established by the defendant No.1 as to why the plaintiff would pay Rs. 7,000/- to defendant No.1 in lieu of his selling th share without getting the possession of the land when the document Ex.P-1 appears to be an outright sale. Moreover, the defendant No.1 has led no evidence to show that the value of the land as agreed to be sold was far in excess of Rs.7,000/-. Would it had been so, then obviously, the possibility of delivery of possession could have been ruled out. However, when the defendant has not led any evidence regarding the market value of the property being in excess of the consideration mentioned in Ex.P-1 then necessarily follow up was that the possession must have been delivered and there is no reason to doubt this fact as mentioned in the document Ex.P-1. 18. From the aforesaid discussion, it is absolutely clear that the learned lower appellate court has correctly interpreted and read in evidence the agreement Ex.P-1, therefore, this question is answered accordingly. Substantial Question of law No.2: 19. This question appears to be superfluous and in fact does not arise from the case set up by the parties. Not only was there any issue framed in this respect but even the parties before the trial court did not invoke the provisions of section 53-A of the Transfer of Property Act (for short the Act). 20. This question appears to be superfluous and in fact does not arise from the case set up by the parties. Not only was there any issue framed in this respect but even the parties before the trial court did not invoke the provisions of section 53-A of the Transfer of Property Act (for short the Act). 20. That apart, it is more than settled that the provisions contained in the aforesaid section can only be used as a shield and not as a sword and it is fallacy to contend that by seeking injunction, the plaintiff respondent was in fact seeking any protection of provisions of section 53-A of the Act by using it as a sword and not as a shield, as vehemently argued by Mr. Ajay Chandel, Advocate. Moreover, the plaintiff had not sought declaration qua Ex.P-1 and suit filed by him is simpliciter that of permanent prohibitory injunction though based upon the document Ex.P-1. 21. That apart, it is more than settled that no amount of evidence beyond the pleadings can be taken into consideration. In this regard, reference can conveniently be made to a judgment rendered by a Division Bench of this Court in Deepak Parkash v. Sunil Kumar 2014 (1) Him. L.R. 654, wherein it was held as under: "17. It is settled law that no amount of evidence beyond pleadings can be looked into. It is further well settled principle of law that the evidence adduced beyond the pleading would not be admissible nor can any evidence be permitted to be adduced which is at variance with the pleadings. The Court at the later stage of the trial as also the Appellate Court having regard to the rule of pleading would be entitled to reject the evidence where for there does not exist any pleading." 22. Having said so, the substantial question of law is answered against the appellant. 23. In view of aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending applications, if any, leaving the parties to bear their own costs.