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2017 DIGILAW 233 (PNJ)

Sat Narain v. Sarup Singh

2017-01-30

ANITA CHAUDHRY

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JUDGMENT : ANITA CHAUDHRY, J. 1. This is the plaintiffs' second appeal who have been unsuccessful before both the Courts below. 2. Elucidating the facts Chandgi and Ravi Dutt fathers of the plaintiffs sold 37 kanals 14 marlas of land out of killa Nos. 32/12, 13, 17, 18 and 19 to Katar Singh, father of the defendants for a consideration of Rs. 6,000/- in 1959. A suit was filed in 1985 that a passage of 2 karams had been left on the southern dol of killa No. 32/17, 18 and 19 for the purposes of ingress and outgress to their remaining land and there was a recital in the sale deed and the defendants were obstructing the use of the passage and therefore a suit for injunction was filed restraining the defendants from interfering in the use of the rasta. 3. The defendants pleaded that there was no passage or rasta reserved by their predecessors and the sale was unconditional and absolute and if there was any recital in the sale deed the same was got fraudulently incorporated by the fathers of the plaintiffs and the condition was illegal and repugnant to the absolute transfer of land made by father of the plaintiffs in favour of their father. It was pleaded that earlier Kartar Singh and now defendants were cultivating the land and they could not claim any rasta after a gap of 26 years. 4. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether there exists a Rasta of two Karam along with the suit property as alleged ? OPP 2. If so, whether the plaintiffs have any right to use the same ? OPP 3. Whether the suit is barred by limitation ? OPD 4. Whether the suit is not maintainable on account of estoppal ? OPD 5. Relief. 5. The plaintiffs examined Zile Singh son of plaintiff-Ravi Dutt, Zile Singh son of Dalpat and Mange Ram besides tendering the photocopy of the sale deed Ex. P1 and copy of jamabandi Ex. P2. 6. The defendants examined themselves, field Kanungo, girdawar and two more witnesses besides tendering documents. 7. OPD 5. Relief. 5. The plaintiffs examined Zile Singh son of plaintiff-Ravi Dutt, Zile Singh son of Dalpat and Mange Ram besides tendering the photocopy of the sale deed Ex. P1 and copy of jamabandi Ex. P2. 6. The defendants examined themselves, field Kanungo, girdawar and two more witnesses besides tendering documents. 7. The trial Court dismissed the suit holding that no rasta was found in existence on the spot by the Girdawar who visited the spot nor any entry was incorporated in the revenue record though there was a recital in the sale deed but that portion had never been used as a rasta nor any steps were taken by the plaintiffs to get the revenue record corrected and they had been sleeping over their rights. It was also noted that PW-2 in the cross-examination had admitted that some portion of the rasta had been cultivated by the defendants. 8. Aggrieved by the judgment, an appeal was preferred in January 1988. The Appellate Court rejected the arguments of the appellants noticing that recital and condition were contained in later part of the document and there was no plea that the plaintiffs had acquired the right of passage by way of easement or that they were using the rasta continuously. It noted that the rasta did not exist on the spot and mere recital in the later part of the deed did not help the plaintiffs and the appeal was dismissed. 9. It is necessary to notice the submissions and the findings recorded by the Appellate Court:- “It is also convassed by the learned counsel for the defendants that mere fact that in that revenue record i.e. in copy of Jamabandi or in mutation the impugned Rasta has not been shown, it cannot be concluded that there is not existing any Rasta. Mutation does not create any title. Copy of Jamabandi is not a document of title. A mutation is not admissible in evidence to prove the terms and conditions of the sale deed. In support of his contention, learned counsel for the appellants has drawn my attention to the authority State of Punjab vs. Pobu 1986 Haryana Acts and Precedents 55. Chand Singh vs. Pritam Singh 1988 P.L.J. 1985. As far as legal proposition is concerned, there is no gain-saying. In support of his contention, learned counsel for the appellants has drawn my attention to the authority State of Punjab vs. Pobu 1986 Haryana Acts and Precedents 55. Chand Singh vs. Pritam Singh 1988 P.L.J. 1985. As far as legal proposition is concerned, there is no gain-saying. If this argument advanced by the learned counsel for the appellant is accepted then the oral evidence led by the plaintiffs to prove the impugned Rasta is liable to be excluded from consideration at the very outset and now first of all it is to be considered as to what is the effect of recital in the sale deed, copy of which is Ex. P1. In this case, original sale deed has not been produced and a perusal of the certified copy of the sale deed shows that after the completion of the execution of the impugned sale deed on 29.7.59, there is added recital about the impugned Rasta. That recital or addition is only thumb marked by Chandgi and Ravi Dutt vendors. The same is not bearing any date. Neither, the same bears signatures or thumb impression of the vendees. It is only mentioned in these recitals that a Rasta of two Karams width would be left on the Southern Dol of Killa No. 32/17, 18 and 19 and the vendors will use the same for ingress and egress to their fields and the vendees will not have any objection. Thus, it is nowhere mentioned in the impugned sale deed Ex. P1 that Rasta has been left. Only it is mentioned that Rasta would be left. It is nowhere pleaded or proved by the plaintiffs as to when the impugned Rasta was reserved or left. Neither there is any bilateral contract or agreement of the parties regarding Rasta in question. Then, it is also well settled that document is to be considered as a whole. In the first part of the sale deed, the land measuring 37 kanals 14 marlas along with all the rights appurtenant thereto has been sold completely in favour of Katar Singh, father of the defendant for a consideration of Rs. 6,000/- by Chandgi and Ravi Dutt who were the fathers of the present plaintiffs. In the operative part of the sale deed, impugned Rasta is not incorporated or reserved. It is nowhere recited that Rasta in question was already in existence. 6,000/- by Chandgi and Ravi Dutt who were the fathers of the present plaintiffs. In the operative part of the sale deed, impugned Rasta is not incorporated or reserved. It is nowhere recited that Rasta in question was already in existence. Then there is also no deduction of area of the land sold in favour of the vendee and neither there is refund of proportionate sale price to vendee.” 10. Counsel for the appellants with great eloquence while relying upon Md. Saimuddin Sheikh versus Abejuddin Sheikh 1979 AIR (Gauhati) 14, Sudhakar Misra and another versus Nilkanth Das and others AIR 1936 Patna 129, Ketharaju Rajeshwari versus Kanthamraju Varalakshmamma and another AIR 1964, Andhra Pradesh 284 (V 51 C 75) and Bhagwat Prasad versus Damodar Das and others 1976 AIR (Allahabad) 411 urged that a right had been protected by the transferor and he could avail of the benefit and Section 11 of the Transfer of the Property Act provides for an exception to the general rule and it is permissible to the transferor to impose any condition regarding the enjoyment of the property transferred. It was urged that the plaintiffs had land on the southern side and therefore the right was reserved. It was urged that the certified copy of the sale deed had been produced on record and the original was in possession of the defendants which they had failed to produce and they were not to give notice to produce the original and the recital in the sale deed had been proved by them. 11. It was urged on behalf of the respondents that the certified copy was not put to the witnesses and a photostat copy was put to the witnesses and an objection had been raised then and subsequently the certified copy was only placed on record and if the photocopy is perused it can be seen that the recital which the plaintiffs are relying upon has been added in the end after the thumb impressions of the witnesses had been appended. It was urged that absolute right had been conveyed to the vendee and the whole document has to be read and no restriction could be placed on the right of the vendee which is repugnant to the property sold. It was urged that absolute right had been conveyed to the vendee and the whole document has to be read and no restriction could be placed on the right of the vendee which is repugnant to the property sold. It was urged that the sale had been made in 1959 and the rasta had never been used and the plaintiffs do not own any property on the southern side and a perusal of the plaint would show that the khasra number indicated by the plaintiffs lie on the northern side of the property of the defendant and the sale deed is not signed by the vendee. It was urged that a suit for injunction alone was not maintainable and if the plaintiffs were asserting their right of user then they had to file a suit for declaration and there is no evidence that they owned any property on the southern side and the plaintiffs have not placed on record any jamabandi to show that they owned any other land. It was contended that the local commissioner who had visited the spot did not find the disputed property being used as a rasta. 12. Admittedly, the property was sold by the fathers of the appellants to the father of the respondents in 1959. Plaintiffs had filed a suit only for injunction in 1985 asserting that there was a rasta which was left on the southern side which the executant could use for the purposes of entering the other fields. This condition has been added in the later part of the document after the vendor and the witnesses had signed the document. The plaintiffs had set up the right of easement. They had led no evidence to show that after 1959 they had been using this property for entering the other fields. According to the plaintiffs they had imposed condition and had a right of user to enter their other properties. The argument has to be rejected. No evidence was led to show that the plaintiffs owned any property on the southern side then or even thereafter. Absolute right in the property had been sold to the predecessors of the respondents. No restrictions could have been placed. The Kanungo had visited the spot and had reported that the rasta did not exist on the spot. It shows that the property was not being used as a rasta. Absolute right in the property had been sold to the predecessors of the respondents. No restrictions could have been placed. The Kanungo had visited the spot and had reported that the rasta did not exist on the spot. It shows that the property was not being used as a rasta. There is no entry regarding the rasta in the revenue record. It is not in dispute that there is rasta on the northern side and on the eastern side of the plaintiff's property and they enter their property from northern and eastern side. The plaintiffs do not own any property on the southern side. There was a dispute whether the rasta had been left. Therefore, the plaintiffs were to seek declaration and the suit for injunction simpliciter was not maintainable. 13. Ordinarily speaking if a property is absolutely transferred to another person, the transferor cannot impose any condition which is inconsistent when the absolute right created in favour of the transferee. This principle is embodied in the first part of Section 11 of Transfer of Property Act. The appellants are relying on the second part of this section but they had failed to prove that the parties had agreed to such a restriction as it is not contained in the first part of the deed. The portion on which the appellants are relying upon had been added subsequently and it is inconsistent to the transfer made. The appellants could not prove that the rasta was being used since the inception. Even if it is taken that the parents had agreed to such a covenant it could not be established that it was acted upon. The second part of Section 11 of Transfer of Property Act is of no help to the appellants as it could not be established that they owned any land on the southern side. 14. The appeal is dismissed.