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2018 DIGILAW 512 (HP)

Rasheed Ahmad v. Rafiq Mohamad

2018-04-02

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal is maintained by the appellant, who was the defendant before the learned trial Court (hereinafter to be called as “the defendant”), laying challenge to the judgment and decree, dated 30.06.2006, passed by learned Additional District Judge, Sirmaur District at Nahan, H.P., in Civil Appeal No. 33-N/13 of 2005, whereby the judgment and decree, dated 02.08.2005, passed by the learned Civil Judge (Sr. Division), Rajgarh, District Sirmaur, H.P., in Civil Suit No. 51/1 of 2004, was upheld, wherein suit of the plaintiff was decreed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the plaintiff filed a suit for permanent prohibitory injunction against the defendant, wherein he alleged that he is owner-in-possession of the suit land, comprised in Khata Khatauni No. 45/68, Khasra No. 401/188, measuring 5 Bighas, situated at Village/Mauja Mayog Jun, Tehsil Rajgarh, District Sirmaur (hereinafter to be called as “the suit land”) and the defendant, who is totally stranger to the suit land, having no right, title or interest therein, started causing interference in it on 08.04.2004 by cutting grass and threatening to damage the peach crop. It has been further alleged that earlier also, i.e. in the last week of May, 2003, the defendant caused interference in the same manner and at that time, the plaintiff had also filed a suit for permanent prohibitory injunction against him, however the same was dismissed in default. Though, the defendant was asked not to do such illegal acts, but of no avail. On the contrary, he threatened the plaintiff to dispossess from the suit land by way of forcible means. 3. By filing written statement, the defendant raised preliminary objections qua maintainability and locus standi. On merits, it has been averred that the plaintiff is not absolute owner-in-possession of the suit land and in fact, he alongwith one Salag, sold the suit land to him (defendant) by way of an agreement to sell for a consideration of Rs. 14,000/-, out of which Rs. 4,600/- were paid to the plaintiff. On merits, it has been averred that the plaintiff is not absolute owner-in-possession of the suit land and in fact, he alongwith one Salag, sold the suit land to him (defendant) by way of an agreement to sell for a consideration of Rs. 14,000/-, out of which Rs. 4,600/- were paid to the plaintiff. As far as the land of Salag is concerned, the same was acquired by the plaintiff, being a landless person and there was special clause in the revenue papers that he was not competent to get the sale registered in favour of the defendant for a period of 20 years from the date of acquisition. It has been further averred in the written statement by the defendant that he has been in possession of the suit land since 15.07.1990 and on 18.05.1992, the plaintiff had been paid Rs. 5,000/-, followed by Rs. 5,000/-, which were paid to him on 17.08.1992. The defendant was ready and willing to perform his part of contract by paying Rs. 1,000/- more as verbally demanded by the plaintiff, in addition to the sale consideration and the plaintiff has nothing to do with the land, which is owned and possessed by the defendant. Further the plaintiff had constructed four rooms in the suit land and there is no peach tree standing in the same. The plaintiff is not aware where the land was allotted to him and the defendant has become owner of it by way of adverse possession. 4. By filing replication, the contents of the plaint were reiterated. The learned trial Court on 05.01.2005 framed the following issues for determination and adjudication: “1. Whether the plaintiff is entitled for decree of permanent injunction as alleged? OPP 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Relief.” 5. After deciding issue No. 1 in favour of the plaintiff and issues No. 2 & 3 against the defendant, the suit of the plaintiff was decreed. Subsequently, the defendant maintained an appeal before the learned first Appellate Court, which was dismissed and the findings recorded by the learned trial Court were upheld. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Subsequently, the defendant maintained an appeal before the learned first Appellate Court, which was dismissed and the findings recorded by the learned trial Court were upheld. Hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether plaintiff is entitled to decree of permanent prohibitory injunction on suit land against defendant, even though plaintiff has not established his possession on the suit land? 2. What is the effect on impugned judgment and decree of non framing of issue of adverse possession emerging from the pleadings of defendant and whether for this reason impugned judgment and decree are liable to be set aside? 3. Whether the defendant, even if is not an agriculturist under H.P. Tenancy and Land Reforms Act, 1972, could not enter into an agreement to sell of suit land with plaintiff without the permission of State Government? 4. Whether Ex. DW-1/A, coupled with other evidence, cannot be treated as agreement to sell suit land having not prepared on stamp papers and without stipulation of time period within which balance amount was to be paid by defendant to plaintiff and when plaintiff was to execute the sale deed? 5. Whether Courts below have misconstrued, misinterpreted, misapplied pleadings, oral and documentary evidence on record and the inference drawn and view taken by two Courts below is not possible on the basis of the material on record? 6. Leaned counsel for the appellant has argued that both the learned Courts below has failed to take into consideration the fact that the plaintiff has failed to prove its case, however the learned Courts below on the basis of surmises and conjectures decreed the suit of the plaintiff. Therefore, the judgments and decrees, passed by learned Courts below, are liable to be set aside, as they are complete misreading of the facts and documents, produced on record. On the other hand, learned counsel for the respondent has argued that the learned Courts below have passed the judgments and decrees after appreciating the evidence and law to its true perspective and, therefore, the present appeal deserves to be dismissed with heavy costs. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 8. 7. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 8. The statement of the defendant when he appeared in the witness box as DW-1, reveals that he is a resident of the State of Haryana and without the permission of the State of Himachal Pradesh, he could not have purchased the land in H.P. His statement further reveals that the suit land has been owned and possessed by the plaintiff and there were orchard of peach in it, which is also clear from Ext. PW-1/A, i.e. copy of Jamabandi for the year 1996-97. Thus, presumption of truth is attached to the entries made in the Jamabandi and to rebut the same, the defendant could not produce any evidence on record. 9. Now coming to second key aspect of the case, i.e., Ext. DW-1/A, the agreement to sell and as per this document, the plaintiff alongwith one Salag had agreed to sell his land, measuring 5 Bighas in favour of the defendant and Salag has also agreed to sell his land, measuring 5 Bighas in his favour for a total consideration of Rs. 14,000/-. However, this receipt cannot be said to be an agreement to sell as the same is not on stamp paper of requisite value and there was no stipulation qua the time period within which, the balance amount was to be paid by the defendant and the plaintiff was required to execute the sale deed in his favour. Since the land had been allotted to the plaintiff for his being landless, the same could not have been alienated by way of sale etc. for a period of 20 years from the date when it was allotted to him. 10. Further in receipt, Ext. DW-1/A, there is no mention of the lands, which were allegedly agreed to be sold to the defendant by the plaintiff and one Salag. As per the contention of the defendant, a house consisting of four rooms has been constructed on the suit land, however there is no documentary proof qua the same. The defendant has himself admitted that the peach orchard of the plaintiff is on the suit land, which has been in his possession. As per the contention of the defendant, a house consisting of four rooms has been constructed on the suit land, however there is no documentary proof qua the same. The defendant has himself admitted that the peach orchard of the plaintiff is on the suit land, which has been in his possession. Though, the defendant has taken a plea to have become owner in the suit land by way of adverse possession, but there is no evidence whatsoever in this regard, even the documents produced by the defendant on record, i.e. Exts. DW-1/B and DW-1/C, does not show that the amount stated therein had been actually received by the plaintiff for himself, as well as on behalf of Salag, who had also agreed to sell his land, measuring 5 Bighas to the defendant. To the contrary, the plaintiff has proved its case that he is owner-in-possession of the suit land by producing on record the copy of Jamabandi, Ext. PW-1/A. 11. From the evidence produced on record, it is clear that it is the plaintiff, who is owner-in-possession of the suit land and, therefore, the judgment and decree, passed by the learned trial Court and upheld by the learned lower Appellate Court, are after appreciating the facts and law to its true perspective and thus cannot said to be perverse and the substantial question of law No. 1 is answered accordingly. Further the learned Courts below have framed all the issues and when the defendant was specifically pleading adverse possession, he knew his case fully well and, therefore, the non framing of issues makes no difference and the substantial question of law No. 2 is answered accordingly. The defendant has failed to prove that there was any agreement to sell, entered inter se the parties by producing the evidence, so substantial question of law No. 3 is answered holding that there was no agreement to sell. Similarly, substantial question of law No. 4 is answered holding that as no agreement to sell was proved on record, the same cannot be taken into consideration. As far as substantial question of law No. 5 is concerned, the same is answered holding that the learned Courts below have interpreted the evidence oral and documentary, to its true perspective and the law has correctly been applied. 12. As far as substantial question of law No. 5 is concerned, the same is answered holding that the learned Courts below have interpreted the evidence oral and documentary, to its true perspective and the law has correctly been applied. 12. The net result of the above discussion is that the instant appeal, sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. 13. Pending miscellaneous applications, if any, also stands disposed of.