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2018 DIGILAW 475 (JK)

Ghulam Rasool v. Kartar Singh

2018-07-04

SANJEEV KUMAR

body2018
JUDGMENT : 1. This appeal is directed against the judgment and decree dated 18.08.2017 passed by the learned 2nd Additional District Judge, Jammu (hereinafter referred to as “the appellate Court”) in file No. 30/Appeal titled Ghulam Rasool Vs. Kartar Singh, whereby the appeal of the appellant against the judgment and decree dated 12.07.2016 passed by the learned City Judge, Jammu (hereinafter referred to as “the trial Court”) has been dismissed. 2. Heard learned counsel for the parties on the question of admission. 3. Shorn of unnecessary details, the brief facts which are necessary for the disposal of this appeal may be noticed. The respondent Sh. Kartar Singh filed a civil suit for permanent prohibitory injunction for restraining the appellant and others from interfering into the ownership and peaceful possession of the respondent over a piece of land measuring 03 kanals comprised in Khasra No. 75 situated at Ragoura Tehsil and District Jammu. In the plaint, it was pleaded by the respondent that he was owner in possession of land measuring 03 kanals under Khasra No. 75, out of which 02 kanals, had been purchased by him from the father of the appellant, namely Abdul Aziz by virtue of sale deed dated 15.04.1992 and rest of the land came into his possession in terms of the agreement to sell dated 07.10.1997 and irrevocable power of attorney executed by said Sh. Abdul Aziz. It was further claimed that the respondent was put in possession of the land only after he paid total consideration of Rs. 70,000/-. It was, thus, alleged that the sons of defendant Abdul Aziz including the appellant herein along with their father had been interfering in the peaceful possession of the respondent, therefore, cause of action accrued to file the suit. 4. The suit was entertained by the trial Court and all the defendants including the appellant herein were summoned to appear and file written statement. The defendants including the appellant herein failed to file written within the stipulated period of 90 days. The application filed by the appellant and others seeking extension of time to file written statement too was rejected by the trial Court vide its order dated 15.03.2016 and consequently, the right of the appellant and other co-defendants in the suit to file written statement was struck off. 5. The application filed by the appellant and others seeking extension of time to file written statement too was rejected by the trial Court vide its order dated 15.03.2016 and consequently, the right of the appellant and other co-defendants in the suit to file written statement was struck off. 5. It is further evident that the respondent led his evidence in ex-parte by way of affidavits of the witnesses. In all, the respondents tendered his own evidence and evidence of one witness namely, Parkash Katoch. It is further apparent that the appellant, whose defence was struck off did not exercise his right of cross-examination. Be that as it may, on the basis of the ex-parte evidence led by the respondent, the trial Court passed a judgment and decree on 12.07.2016 in favour of the respondent. 6. Aggrieved, the appellant alone filed an appeal before the appellate Court. The judgment and decree of the trial Court was assailed by the appellant primarily on the ground that the respondent had not approached the trial Court with clean hands and has suppressed the material facts and, therefore, was not entitled to equitable relief of injunction and also on the ground that the petitioner was claiming a decree of perpetual injunction on the basis of an agreement to sell which does not create any right in favour of the person in whose favour it is executed. It was also contended in the appeal that the respondent had an efficacious remedy of seeking enforcement of the agreement to sell/contract of sale and, therefore, in terms of Section 56 of the Specific Relief Act, no injunction could have been claimed by the respondent and granted by the trial Court. 7. The appellate Court considered the contentions of the appellant threadbare but did not find any substance therein. Accordingly, the appellate Court upheld the judgment and decree of the trial Court and dismissed the appeal filed by the appellant as also his brother Mohd. Ali vide its judgment dated 18.08.2017, impugned in this appeal. 8. Having heard learned counsel for the parties and perused the record, I am of the considered opinion that the appeal does not raise any substantial questions of law which is necessary for maintainability of Civil 2nd Appeal in terms of Section 100 of the Code of Civil Procedure. 9. Ali vide its judgment dated 18.08.2017, impugned in this appeal. 8. Having heard learned counsel for the parties and perused the record, I am of the considered opinion that the appeal does not raise any substantial questions of law which is necessary for maintainability of Civil 2nd Appeal in terms of Section 100 of the Code of Civil Procedure. 9. Before this Court there are concurrent findings of fact recorded by the two Courts below and the same are based on good evidence and, therefore, shall be conclusive in the 2nd appeal. 10. Learned counsel appearing for the appellant made all out effort to urge that the findings of fact though concurrently recorded by the two Courts below are perverse. It is urged that the judgment of the appellate Court, impugned in this appeal, is not in consonance with Order 41 Rule 31 of the Code of Civil Procedure inasmuch as the learned appellate Court has neither framed points for determination nor has given its decision thereon supported by reasons. It was emphasised by the learned counsel for the appellant that vital aspect that was highlighted by the appellant before the appellate Court that there was suppression of material facts by the respondent from the trial Court, as such, no decree for permanent prohibitory injunction could have been passed was not considered by appellate Court. In support, learned counsel appearing for the appellant relied upon the judgment of the Supreme Court rendered in the case of Laliteshwar Prasad Singh and ors. Vs. S.P. Srivastava (D) Thr LRs; (2017) 2 SCC 415 . It is contended that relief of permanent prohibitory injunction as envisaged under the Specific Relief Act is equitable in nature and the person, who does not come to the Court with clean hands and suppresses material facts is disentitled to claim such relief founded on equity. To elaborate his submissions, learned counsel appearing for the appellant submitted that the suit was filed by the respondent qua the land measuring 03 kanals comprised in Khasra No. 75 claiming that he was owner in possession of the aforesaid land but the fact remains that out of the suit land measuring 03 kanals, 02 kanals had already come under acquisition of the Jammu Development Authority. The respondent, it is submitted, did not divulge this fact in the suit and sought a decree of permanent prohibitory injunction against the appellant and others qua the aforesaid land as well. He, therefore, submitted that the aforesaid aspect was highlighted in the appeal and the relevant documents in the shape of information received under RTI was also placed on record but the appellate Court failed to appreciate the same and rejected the appeal without giving any cogent and legally sustainable reasons. This is how, the learned counsel for the appellant sought to project perversity in the judgment and decree impugned. 11. It is true that respondent filed a suit qua 03 kanals of land claimed to be in his possession. The suit was filed on the basis of cause of action which had accrued to the respondent due to intended and apprehended interference by the appellant and his brothers. 12. I have carefully gone through the contents of the plaint and find that the respondent had not mentioned acquisition proceedings with regard to the 02 kanals of land but had claimed to be owner in possession thereof by virtue of a sale deed executed by the father of the appellant Late Abdul Aziz. We cannot conflict and ignore that in the trial Court, the right of the appellant to file written statement had been closed and his defence had been struck off. Once the defence of a party in a suit is struck off, the legal position is that he cannot file the written statement, take up defence and lead evidence in rebuttal. He, however, is entitled to cross-examine the witnesses of the plaintiff to demolish his case and demonstrate before the trial Court that going by the pleadings of the plaintiff and the evidence led in the case, the plaintiff is still not entitled to any decree. 13. As noted above, though the defence of the appellant had been struck off but he did not chose to cross-examine the witnesses which right was still subsisting, striking off of the defence notwithstanding. The appellant, in these circumstances, could not have come out of the disability to which he was subjected due to striking off of his defence. 13. As noted above, though the defence of the appellant had been struck off but he did not chose to cross-examine the witnesses which right was still subsisting, striking off of the defence notwithstanding. The appellant, in these circumstances, could not have come out of the disability to which he was subjected due to striking off of his defence. In the appeal, as is evident, the appellant tried to set up his defence and brought on record the material to show that 02 kanals of the land out of the suit property was under acquisition of the JDA and, therefore, the respondent could not have claimed any decree qua the aforesaid land. 14. In response, the respondent also came on record in the appeal to show that though land in question had come under acquisition of the JDA but the same was still in his possession and he was entitled to protect the same till it was formally acquired and requisite compensation thereof is paid. The appellate Court considered all these aspects but did not find favour with the submissions made on behalf of the appellant. 15. This Court is also not persuaded to take a view different from the one taken by the two Courts below. Learned counsel for the appellant has not been able to point out any perversity with the concurrent findings of fact returned by the two Courts below. This Court also does not find that omission to mention that 02 kanals of the suit property was under acquisition is a suppression of any material fact disentitling the respondent to claim equitable relief. The respondent was entitled to protect his possession qua the aforesaid 02 kanals of land against the appellant and others till the same was formally acquired and taken possession of by the concerned authority after completing the procedure under the Land Acquisition Act. 16. I have carefully gone through the judgment of the appellate Court and do not find that the same is not in consonance with the Order 41 Rule 31 of CPC. As is evident from the judgment impugned, the appellate Court was clear on the points to be determined in the appeal and rendered its considered opinion supported by reasons which are amply given in the impugned judgment. As is evident from the judgment impugned, the appellate Court was clear on the points to be determined in the appeal and rendered its considered opinion supported by reasons which are amply given in the impugned judgment. That being so, the judgment relied upon by the learned counsel appearing for the appellant in the case of Laliteshwar Prasad Singh and ors. (supra) does not help the appellant in any manner. 17. In view of the aforesaid discussion, it is clear that the appellant has failed to raise any substantial question of law in this appeal to justify its admission to hearing. Accordingly, this appeal is dismissed. There shall however, be no order as to the costs.