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2021 DIGILAW 343 (RAJ)

Shambhu Lal v. Ishwar Lal

2021-02-10

ARUN BHANSALI

body2021
JUDGMENT 1. This appeal is directed against the judgment & decree dated 16.03.2015 passed by the Civil Judge (Jr.Div.), West, Bhilwara and the judgment & decree dated 29.05.2019 passed by the Additional District Judge No.3, Bhilwara, whereby the suit filed by the respondent-plaintiff for permanent injunction and possession has been decreed and the appeal filed by the appellants has been dismissed, respectively. 2. The suit was filed for injunction by the plaintiff, inter-alia, with the submissions that the plot in question being F-53, ad measuring 19' x 40' at Dr. Radhakrishnan Nagar was owned by the plaintiff, on which the appellants had no right, however, as they have threatened to take possession of the plot in question, injunction be granted. The suit was later on converted into suit for possession as well on account of the allegations that the defendants, after filing of the suit, have trespassed over the plot in question. 3. It was, inter-alia, claimed that the plot in question was purchased by registered sale deed dated 03.03.1980 by Kanhaiyalal S/o Shri Rughnath from Kishan Lal Kumawat, who in turn sold it to plaintiff on 10.12.1986 and put him in possession and that plaintiff's possession was being threatened. 4. The appellants filed written statement, inter-alia, claiming that the plot in question was owned by Kishan Lal, who executed agreement to sale in favour of Rughnath in the year 1976, who in-turn entered into agreement to sale dated 22.05.1979 with appellant - Smt. Rukmani Devi and based on the said agreement to sale, they were in possession of the suit property and therefore, the plaintiff was not entitled to any relief. 5. Based on the submissions made, the trial court framed five issues. 6. On behalf of the plaintiff, two witnesses were examined including Kanhaiyalal, the transferor and as many as 28 documents were exhibited. 7. On behalf of the appellants, four witnesses were examined and three documents were exhibited alongwith copy of Commissioner's report. 8. After hearing the parties, the trial court came to the conclusion that the plot in question was transferred by Kishan Lal to Rughnath vide agreement to sale Exhibit-1 dated 07.12.1976; Kishan Lal thereafter, executed a registered sale deed in favour of Kanhaiyalal S/o Rughnath on 03.03.1980 vide Exhibit-2;whereafter, on 10.12.1986, Kanhaiyalal transferred the plot to plaintiff - Ishwar Lal vide Exhibit-3; whereafter, the Urban Improvement Trust has issued licence, patta etc. 9. 9. Based on the said finding and the fact that the appellants were simply relying on an agreement to sale by Kishan Lal in favour of Rughnath and a further agreement to sale in their favour, which transactions for lack of registration did not confer any title on the defendants in view of judgment of Hon'ble Supreme Court in Suraj Lamp & Industries v. State of Haryana: 2011 DNJ (SC) 1058 and the finding that the agreement to sale in favour of the appellants contained thumb impression of Rughnath, whereas on documents Ex.-l, 2, 26 to 28, Kanhaiyalal S/o Rughnath proved signatures of Rughnath, came to the conclusion that the plaintiff was in possession of the suit property by way of valid transfer and that the appellants had trespassed over the plot in question during pendency of the suit and consequently, passed the decree impugned. 10. Feeling aggrieved, the appellants filed first appeal, the First Appellate Court reiterated the findings recorded by the trial court and dismissed the appeal. 11. Learned counsel for the appellants attempted to make submission that during the pendency of the suit, the trial court permitted amendment of the plaint, whereby a simple suit for injunction was converted into a suit for possession and injunction. It is submitted that the order passed granting the amendment in this regard dated 05.08.1999, was incorrect. 12. Admittedly, the order granting amendment was neither challenged during pendency of the suit at the relevant time nor such a plea was raised before the First Appellate Court and therefore, it is not open for the appellants to raise this issue before this Court in the present second appeal. 13. Another submission was made that the two courts below had directed the respondent-plaintiff to pay additional court fees, however, the same have not been paid so far. The said aspect cannot lead to any interference in the judgments impugned, inasmuch as, in case, the respondent-plaintiff wants execution of the decree, he would have to pay the requisite court fees. 14. Another submission was made that the two courts below had directed the respondent-plaintiff to pay additional court fees, however, the same have not been paid so far. The said aspect cannot lead to any interference in the judgments impugned, inasmuch as, in case, the respondent-plaintiff wants execution of the decree, he would have to pay the requisite court fees. 14. Further attempts were made to question the concurrent findings recorded by the two courts below, however, learned counsel for the appellants failed to indicate any perversity in the findings recorded by the two courts below, wherein the appellants were merely relying on the two agreements to sale from the original owner Kishan Lal to Rughnath and Rughnath to appellants, whereas, the original owner Kishan Lal himself executed a sale deed dated 03.03.1980 in favour of Kanhaiyalal S/o Rughnath and said Kanhaiyalal transferred the property to the plaintiff, entered the witness box and supported the plaintiff and that the appellants after filing of the suit had trespassed over the suit property during the pendency of the suit. 15. In view of the above discussion, the judgments passed by the two courts below do not give rise to any substantial question of law. There is no substance in the appeal, the same is, therefore, dismissed.