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2018 DIGILAW 1571 (HP)

Surinder Prasad v. Madhur Green

2018-08-29

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The appellants are the defendants, who being aggrieved and dissatisfied by the judgments and decrees passed by both the learned Courts below, have filed the instant Regular Second Appeal. The parties shall be referred to as the plaintiff and the defendants. 2. The facts, in brief, are that the plaintiff filed a suit for permanent prohibitory injunction restraining the defendants from raising any construction on land measuring 57-60 sqaure meter, in Khata No. 200, Khatauni No. 282, Khasra no. 723, as detailed in the jamabandi for the year 2000-2001, in Tehsil Dehra, District Kangra, H.P., till the property is partitioned and for mandatory injunction for removal of structure, if raised, over the suit property. The plaintiff has alleged that in family partition dated 29.03.1987 between three brothers, the shop in dispute had fallen to his share and that he was recovering the rent from the tenant. 3. The defendants contested the suit and set up the plea that shop has been demolished by defendant No. 1 after the relinquishment of the tenancy rights in his favour and the delivery of physical possession of the property by him on payment of Rs. 1.10 lac. The family settlement dated 29.03.1987 was admitted, however, it was submitted that the father of the plaintiff Joginder Prasad has left his share and transferred his right of ownership to defendant No. 1 for consideration of Rs. 1 lac through agreement dated 25.12.1992 and ever since that time, the plaintiff and other successors of Joginder Prasad had been left with no right in the suit property and defendant No. 1 was in exclusive ownership and possession of the shop, pursuant to the agreement dated 25.12.1992 in part performance of the same. It was also averred that after the agreement dated 29.03.1987, other heirs of Ramesh Chand, who had settled in Ghumarwin, had also given up their rights in the suit property in favour of defendant No. 1 vide agreement, dated 26.10.2003. It was also averred that the shop being in a dilapidated condition had collapsed due to the construction work which was carried out by the adjoining owner and defendant No. 3 had surrendered the possession of the suit property on receipt of Rs. It was also averred that the shop being in a dilapidated condition had collapsed due to the construction work which was carried out by the adjoining owner and defendant No. 3 had surrendered the possession of the suit property on receipt of Rs. 1.10 lac and executed an agreement dated 24.01.2005 and had also sworn affidavit in this behalf and after that only defendant-appellant had demolished the shop and started construction. It was also averred that not only Joginder Prasad father of the plaintiff had executed agreement to sell dated 25.12.1992, but had also transferred his ownership rights in favour of defendant No. 1 for consideration of Rs. 1 lac, however due to the non-availability of the father of the plaintiff, the sale deed could not be registered. In alternative, the plea of adverse possession has also been set up by the appellants. 4. As regards, defendant No. 3, the suit was contested by filing separate written statement, wherein he had taken the plea of estoppel, collusiveness and limitation. 5. The learned trial Court after framing of issues, proceeded to record the statements of the witnesses. The plaintiff examined three witnesses and tendered family settlement Ext. PW-1/B and the money order receipts. On the other hand, the defendants-appellants examined three witnesses and placed on record the agreement dated 25.12.1992 Ext. DW-3/A and agreement dated 24.01.2005, Ext. DY. The learned trial Court partly decreed the suit and the defendants were restrained from raising any sort of construction or changing the nature of the suit land. The document Ext. DW-3/A was held not to be in genuine and valid document. The defendants being aggrieved by the judgment and decree of the learned trial Court, filed an appeal before the learned first Appellate Court and the same also came to be dismissed by judgment and decree dated 1st April, 2017, constraining them to file the instant appeal. 6. It is vehemently argued by Mr. K.D. Sood, learned Senior Advocate assisted by Mr. Shubhum Sood, Advocate that the findings, as recorded by the learned Courts below, are perverse and based on misreading of oral and documentary evidence, especially, when it was proved on record that defendant No. 3 had surrendered the tenancy rights and delivered the possession of the property on receipt of Rs. 1.10 lac from the defendant No.1 and also the father of the plaintiff, Joginder Prasad, had received Rs. 1.10 lac from the defendant No.1 and also the father of the plaintiff, Joginder Prasad, had received Rs. 1 lac vide agreement dated 25.12.1992 from the appellant. Likewise, the other heirs had also taken money from the defendant No.1 and therefore, surrendered/relinquished their rights in the property. 7. On the other hand, Mr. Romesh Verma, learned counsel has argued that the findings recorded by both the learned Courts below call for no interference, as there is no infirmity whatsoever in the judgments, so passed by it. 8. I have heard learned counsel for the parties and have also gone through the records of the case carefully. 9. At the outset, it may be observed that the defendants had even raised the plea of adverse possession and obviously they acknowledged and attorned to the title of the plaintiff. It is more than settled that whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. 10. Now, as regards question of possession, in case the plaint is minutely analyzed, the very frame of the suit suggests that the plaintiff is not in exclusive possession of the suit land and thus, it stands established that plaintiff is one of the co-sharers of the suit land. However, the question still remains as to whether the plaintiff is in actual physical possession and, therefore, could the first Appellate Court in absence of their being any appeal by the plaintiff against the judgment passed by the learned trial Court, conclude as follows:- “On the basis of aforesaid, it could be summarized that there is nothing on the record to show that defendants No. 1 & 2 are in actual possession of the suit land as well as disputed shop, on the contrary the admission of defendant No. 1 coupled with the written statement defendant No.3 shows that it is the plaintiff, who is in possession. Defendant No. 1 cannot build up his title on the basis of agreement to sell. Even considering the suit land and disputed shop to be a joint property then also plaintiff is entitled for relief of injunction as he is in possession of it in pursuant to a family settlement. Defendant No. 1 cannot build up his title on the basis of agreement to sell. Even considering the suit land and disputed shop to be a joint property then also plaintiff is entitled for relief of injunction as he is in possession of it in pursuant to a family settlement. Hence, in these circumstances, learned Trial Court rightly decree the suit of the plaintiff for the relief of injunction.” 11. Obviously, the findings are not borne out from the records of the case, as it is not even the specific case of the plaintiff that he is in exclusive physical possession of the property, rather the plaintiff has claimed himself to be in symbolic possession of the property as is evident from the averments as mentioned in para-9, which read as under: “9. That the defendant No.3 was in possession of the same as tenant and the plaintiff is its landlord and hence he is in its symbolic possession. Since the building has collapsed on 22.1.2005 and since then the defendant No.3 is not sitting there and as such since 22.1.2005 the plaintiff is in its possession on the spot.” 12. Even otherwise, in case, the plaintiff would have been in possession of the property, he would have not sought a decree for restraining the defendants from raising any sort of construction or changing the nature of the suit land, but would have sought an injunction for restraining the defendants from interfering in his peaceful possession. To that extent, the findings as recorded by the learned first Appellate Court in para 11 (supra), are perverse and are liable to be set aside. However, as regards other findings of the learned Court below being perverse as these are not borne out from the records, the arguments of the defendants are too far fetched and even otherwise not supported by the pleadings or the records. 13. The entire case of the defendants-appellants is based upon the agreement Ext. DW-3/A, but despite having been granted sufficient opportunities, they failed to produce the receipt qua the same. 13. The entire case of the defendants-appellants is based upon the agreement Ext. DW-3/A, but despite having been granted sufficient opportunities, they failed to produce the receipt qua the same. The specific case of the plaintiff was that the suit land and the disputed shop is his absolute property, which had fallen into his share in a family settlement, suffice it to say that the defendants while filing the written statement admitted the family settlement, but claimed that the suit land on the basis of subsequent agreement Ext. DW-3/A executed by Shri Yoginder Sood, had sold the suit land as well as disputed shop in favour of defendant No. 3 for a consideration of Rs. 1 lac. 14. Perusal of documents Ext. DW-1/A, reveals that defendant No. 1 had agreed to transfer his rights of different premises in favour of his brother. Moreover, it is only an agreement to sell and not a sale deed and, therefore, has to be kept out of consideration in view of the provisions contained under Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, 1908. Any contract of sale which is not a registered deed of conveyance would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of Transfer of Property Act). Thus, Ext. DW-3/A, is only an agreement to sell, therefore, the defendants cannot claim any title on the suit land on the basis of said document. As regards, the other contention of the defendants that the shop was in fact delivered by late Yoginder Sood during his life time, there is practically no evidence led in this behalf. In such circumstances, the judgments and decrees passed by the learned Courts below call for no interference. 15. No question of law much less substantial question of law arises for consideration in this appeal and the same is accordingly dismissed. 16. However, before parting, it is made clear that since conclusion drawn by the learned first Appellate Court in para-41 are extraneous to the record, to that extent, the same shall stand set aside. With these observations, the appeal stands disposed of in the aforesaid terms, leaving the parties to bear their own costs.