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2024 DIGILAW 182 (JK)

Ram Lal v. Chunni Devi

2024-04-04

VINOD CHATTERJI KOUL

body2024
JUDGMENT : 1. Aggrieved of order dated 25.08.2021 passed by Principal District Judge, Bhaderwah (hereinafter referred to as the "Trial Court") in an application seeking grant of interim injunction in a Civil Cuit titled "Chunni Devi Vs. Ram Lal and Anr.", whereby the Trial Court has allowed the application of the plaintiff/respondent herein restraining the defendant/appellant herein from interfering in the possession of plaintiff/respondent over the suit land, appellant seeks setting-aside thereof. 2. The order impugned is being challenged, precisely, on the grounds that the same is contrary to the facts and law; that the Trial Court has miserably failed to appreciate the pleadings in the suit, particularly, the written statement, wherein the appellant/defendant has specifically stated that he is in possession of the suit land and his possession has been recorded in Khasra Girdwari of 2020-21; that no document in support of possession had been placed on record by the plaintiff/respondent; that the Trial Court has fallen in a grave error by overlooking the provisions of Land Revenue Act; that Trial Court ought to have passed order of status-quo as the possession was being claimed by both the parties; that there was no case for grant of temporary injunction in favour of the plaintiff/respondent. 3. The facts leading to the filing of the instant appeal as projected by appellant/defendant are that respondent/plaintiff filed a suit before the Trial Court seeking Decree for Declaration as well as Decree for Permanent Prohibitory Injunction against defendant/appellant on the ground that plaintiff/respondent is sole owner in possession of land measuring 05 Kanals and 08 Marlas comprising Survey No.202 situated at Village Draie, Tehsil Gandoh Bhalessa by virtue of Will Deed executed by one person, namely, Balku S/o Prabhu Megh, R/o Draie, Tehsil Gandoh on 01.10.1993. The respondent/ plaintiff also sought injunction to restrain the defendant/appellant from interfering on the ground that he had no right or title over the suit land and the illegal entry in the revenue record is void. The plaintiff/respondent also pleaded in the suit that after death of aforenamed Balku, mutation No.227 dated 01.01.2003 of Village Draie, Tehsil Gandoh Bhalessa, was attested by Tehsildar, declaring her to be the sole owner and the entries regarding the same were made in the revenue record. The plaintiff/respondent also pleaded in the suit that after death of aforenamed Balku, mutation No.227 dated 01.01.2003 of Village Draie, Tehsil Gandoh Bhalessa, was attested by Tehsildar, declaring her to be the sole owner and the entries regarding the same were made in the revenue record. The revenue officials by misusing the powers, made an illegal entry in Kharief 1993 in favour of the appellant/defendant by creating new tenancy record to utter disrespect to law. It has also been pleaded by plaintiff/respondent that revenue officials, by transgressing their power, made illegal and contrary entry, which cannot bind the rights of the plaintiff as the same is non est in the eye of law and is required to be declared as null and void. The defendant/appellant, who is having no right or title in respect of the suit land, is interfering in the same. The defendant/appellant herein while denying the claim putforth by the plaintiff/respondent, raised counter-claim that he is in possession of the land since 1993-94 and defendant/appellant had been openly in public claiming ownership in the suit land and dealing with such land since 1993 and is claiming; that he has become owner of the land since they are in possession for the last more than twelve (12) years. The plaintiff/ respondent got knowledge of sale agreement dated 20.11.1994 executed by her son in favour of the defendant/appellant in 1994, when second instalment of price of land was paid to her. She never objected to it till date that the plaintiff had also exceeded to act on his son, namely, Des Raj, by not objecting or claiming the possession back of suit land, as is evident in the revenue record. The defendant/ appellant claimed that he is cultivating the land as owner. The claim put forth by the defendant/appellant in the written statement is that possession of the land has been given to him on the execution of the agreement to sell executed by the son of the respondent/plaintiff and he is in possession since 1994, when such agreement to sell was executed and he also claim that his possession has matured into ownership as he is in possession for last more than twelve years within the knowledge of the plaintiff/respondent and the public at large. The Trial Court while dealing with the application, seeking temporary injunction, has observed and held as under:- “………………….. 12. The Trial Court while dealing with the application, seeking temporary injunction, has observed and held as under:- “………………….. 12. The plaintiff, thus, has to satisfy the aforementioned three cardinal principles for establishing his right qua the suit property infraction whereof has been militated by the defendants to protect the same till the same is decided during trial by leading evidence. 13. The first argument of LC for the defendants/non-applicants that suit is not maintainable as the dispute pertains to possession and the said controversy can only be settled by a revenue Court but not by civil Court, I am not inclined to accept this argument of learned counsel for the defendants/non-applicants because the frame of the suit does not disclose it as an exclusive suit for possession rather a suit for declaration and injunction which is not barred. So the plea of maintainability of the suit put in question by the learned counsel for the defendants/non-applicants loses its significance and this Court is conscious of the fact that while deciding application for grant of temporary injunction the suit cannot be decided on the question of maintainability because Court has to confine itself within the parameters engrafted under Order 39 Rule 1 and 2 CPC and cannot stretch its jurisdiction beyond that an issue regarding maintainability of the suit can be framed and that can be decided only during trial. The other contention of ld. The other contention of ld. counsel for the defendants/non-applicants that they are in possession on the basis of agreement to sell executed by Des Raj son of plaintiff since 20.11.1994 and have perfected their title by way of adverse possession and the claim raised, therefore, by way of counter claim is suffice, does not again hold ground because on going through the revenue record, i.e., copy of Mutation, which was attested on 01.01.2003 vide No. 227 in favour of the petitioner on the basis of Will executed by her father Balku on 01.01.1993 reflects that plaintiff/applicant became owner of the suit land by virtue of Will Deed and mutation attested on the basis thereof and Jamabandi of year 1991-92 also finds mention of the attestation of mutation in favour of the plaintiff/applicant and even upto 1993 erstwhile owner father of the petitioner Balku was owner in possession of the suit land as is revealed from khasra girdawari for the year Rabi and Kharief 1993, so, the attempt of defendants to ride on the agreement to sell dated 20.11.1994 and khasra girdawari for the year Kharief 2020 to claim possession of the suit property does not suffice because khasra girdawari is not the only determinative factor to ascertain possession of a person and secondly the agreement to sell does not confer any right or title in favour of the defendants and is a sham document having no legal sanctity to effect transfer of title or possession in favour of the defendant No.l. More particularly when the said agreement to sell has been executed by Des Raj s/o plaintiff in favour of defendant no.l as per assertions of the defendant no.l and said Des Raj had no authority to execute such an agreement because he was not acting as attorney holder of the plaintiff to execute such an agreement and further he was having no right qua the suit property to enter into such a transaction and, therefore, no legal right flows therefrom in favour of the defendant No. 1. It is no more res-integra that immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance. Transaction of the nature of GPA Sales or SA/GPA/Will transfers to not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. It is no more res-integra that immovable property can be legally and lawfully transferred/conveyed only by registered deed of conveyance. Transaction of the nature of GPA Sales or SA/GPA/Will transfers to not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property. The Courts will not treat such transactions as completed or occluded, transfers or as conveyances, as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53-A of the T.P. Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or revenue records. This will apply not only to deeds of conveyance in regard to free hold property, but also to transfer to lease hold property. A lease can be validly transferred only under a registered assignment of lease. It is time that an end is put to the pernicious practice of SA/GPA/Bill transactions known as GPS Sales. Reliance is placed on Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Ors., AIR 2012 SC 206 . 14. The other contention of learned counsel for the defendants that since both the parties are asserting possession over the suit land so in that eventuality status quo order is required to be passed and the order or temporary injunction is operating harshly is again not sustainable because while passing an order or status quo possession of a party has to be determined first and a blanket order of status quo cannot be passed as has been held by our own High Court and the ratio of the judgment titled 1999 (2) Civil Court Cases 404 Punjab and Haryana referred to by the learned counsel for the defendants is not applicable to the factual scenario of this case. Further plea of the learned counsel for the defendants that by virtue of the interim order of injunction main relief has been granted, so same needs to be modified is again bereft of legal force and the judgment referred in this context is not applicable to the facts of this case because no relief having the overreaching consequences has been passed at the interim stage and defendants cannot be permitted to enter the possession on the basis of a sham document and entry of khasra girdawari which has no sanctity in the eyes of law and further the counter claim set by the defendants in the written statements would not perfect the title in favour of the defendant and again the judgment referred in this context by the learned counsel for the defendants 2017 (4) Civil Court Cases 014 (H.P) is not applicable to the facts situation of this case. Further mutation or khasra (girdawari effected in favour of a party does not create any title or right over the property in favour of the said party. Reliance is placed on AIR 1963 J&K 15 Div. Bench. 15. On overall analysis of the pleadings and documents placed on record by both the parties, it can be safely inferred that plaintiff has title and right over the suit property, so has a prima facie case at this stage and her legal right has been militated by the proposed action of the defendants on the basis of sham document agreement to sell and entry of khasra girdawari, so right of the plaintiff needs to be protected till the same is decided during trial on the basis of document referred and evidence led and on comparing the balance of convenience it is the plaintiff in whose favour the balance of convenience hinges but not in favour of the defendants who have yet to establish their legal right qua the suit property and consequently the comparative loss and injury in case of refusal of injunction shall be maximum to the plaintiff applicant because she would be divested of her right to enjoy the suit property being owner whereas no loss would be caused to the defendants in case of grant of injunction, because they yet have to establish their legal right qua the suit property. 16. 16. For the foregoing reasons, plaintiff applicant has been successful to fulfill the three essential parameters for grant of injunction and consequently the application is allowed the interim direction dated 12.05.2021 is made absolute till the disposal of main suit. However, this order shall be amenable to alteration, modification on the basis of changed circumstances/situation on motion of either party. The application is disposed of and be attached with the main suit file. The opinion expressed herein above shall be limited for the disposal of this application only and shall have no bearing on the merits of the main suit." 4. The defence put forth by defendant/appellant before the Trial Court is that an agreement to sell was executed in his favour and that he has paid the sale consideration. The sale agreement is said to have been executed by the son of the plaintiff/respondent and not by the plaintiff herself. The appellant, on one side, claims to be in possession on the basis of agreement to sell and on the other hand, claims that he has become the owner with the passage of time because he is in possession of the suit property for last more than twelve years. Possession of a person can mature into ownership with the passage of time if the same is claimed to be adverse. 5. In the present case, the claim, which has been put forth by the appellant/defendant is that he came in possession of the suit land on the basis of agreement to sell. His possession, thus, as per his claim cannot be said to be an adverse possession, if at all he is in possession, but it would be a permissive possession. The agreement to sell has not been executed by the respondent/plaintiff, who is owner of suit property because on the basis of a Will, mutation in respect of land in question has been attested in his favour. Who can execute an agreement to sell is the owner and not the stranger. Here, the execution of Sale Deed is not by owner, i.e., the plaintiff/respondent. The defendant/ appellant has not placed on record any such document which could show that execution of agreement to sell was, at any time, authorized by plaintiff/respondent and they had authorized anybody to execute such document. Here, the execution of Sale Deed is not by owner, i.e., the plaintiff/respondent. The defendant/ appellant has not placed on record any such document which could show that execution of agreement to sell was, at any time, authorized by plaintiff/respondent and they had authorized anybody to execute such document. A third person cannot without there being any authority to him to execute a document regarding the land in favour of a third person and such a document can also not confer any right upon such a person. Secondly, appellant/defendant claims to be in possession of suit property and he relies upon an entry made in the revenue record, i.e., Khasra Girdwari. The Khasra Girdwari cannot be proved with regard to the possession and entry like one made in Annexure-IV, which is being relied upon by the appellant, cannot be said to be a proof regarding possession or can never be taken to support the contention of appellant regarding the possession. 6. It is not the case of the appellant that mutation has been attested in respect of the land in question in his favour on the basis of any gift. Khasra Girdwari would reveal that on the basis of a gift entry in columns of cultivators has been made in the name of Ram Pal S/o Dharam Chand, Megh R/o Village Draie, Tehsil Gandoh (Bhalessa). The entry made in Khasra Girdwari is that the said Ram Lal is in possession of the land on the basis of a gift. This entry itself appears to be a fake entry because there is no document produced by appellant to show that any gift deed was executed in respect of the suit land, on the basis of which, entry could have been made regarding possession in the entry column of Khasra Girdwari of Tehsil Gandoh (Bhalessa), District Doda. 7. It would be appropriate to reproduce Rules 1 & 2 of Order 39 CPC hereunder : "1. Cases in which temporary injunction may be granted. 7. It would be appropriate to reproduce Rules 1 & 2 of Order 39 CPC hereunder : "1. Cases in which temporary injunction may be granted. – Where in any Suit it is proved by affidavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the court may by Order grant a temporary injunction to restrain such act, or make such other Order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach, — (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of like kind arising out of the same contract or relating to the same property or right. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account giving security, or otherwise, as the Court thinks fit." 8. In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 , the Supreme Court has held that grant of injunction is a discretionary relief. (2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account giving security, or otherwise, as the Court thinks fit." 8. In Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719 , the Supreme Court has held that grant of injunction is a discretionary relief. The exercise thereof is subject to the court satisfying that (1) there is a serious disputed question to be tried in the suit and that an act, on the facts before the court, there is probability of his being entitled to the relief asked for by the plaintiff/defendant; (2) the court’s interference is necessary to protect the party from the species of injury. In other words, irreparable injury or damage would ensue before the legal right would be established at trial; and (3) that the comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be greater than that would be likely to arise from granting it. The Supreme Court further held that there should be prima facie case in favour of the applicants which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. 9. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that non-interference by the Court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. 10. In Wander Ltd. v. Antox India P. Ltd., 1990 (Supp) SCC 727, the Supreme Court has held that usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary and is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. 11. In Shiv Kumar Chadha v. Municipal Corpn. of Delhi, (1993) 3 SCC 161 , it has been held by the Hon’ble Supreme Court that the grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles –ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. 12. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. 12. With respect to the exercise of appellate powers in relation to the exercise of discretion by the trial court in deciding an application for temporary injunction, the Hon’ble Supreme Court in Wander Ltd. v. Antox India P. Ltd. (supra) held that in such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not re-assess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion. 13. The Trial Court had taken into consideration and given a reasonable finding with regard to the principles, which govern “granting and refusal of injunction” under Order 39 Rule 1 and 2of the Code of Civil Procedure. The pleadings/claims put forth and the document relied upon by the parties make out a case, which requires trial and the pleadings and record make out a prima-facie case for grant of temporary injunction in favour of plaintiff/respondent. The plaintiff/respondent, in whose favour mutation has been attested being owner of property, will be subjected to irreparable and substantial loss in case his right vis-à-vis property in question, subject matter of the suit, is not protected. The plaintiff/respondent, in whose favour mutation has been attested being owner of property, will be subjected to irreparable and substantial loss in case his right vis-à-vis property in question, subject matter of the suit, is not protected. The plaintiff/respondent has inherited the suit land on the basis of a Will and mutation. She is the owner regarding which there is no dispute. The appellant/defendant is claiming right over the property on the basis of an agreement to sell, which is not a document executed by the plaintiff/respondent herein, who is recorded as the owner of the property in question. Therefore, the document executed by a person other than the owner without he having any authority, cannot create a prima-facie right in respect of the property belonging to the plaintiff and his right cannot be defeated, at this stage, on account of such document. The Khasra Girdwari also, on the face of it, appears to be a same document and such document when there is no basis shown for making such entries, cannot be taken to be a document, which could defeat the claim of the plaintiff. Therefore, the balance of convenience would also lie in favour of the plaintiff. The jurisdiction exercised by the trial Court in such matters, when such discretion is exercised judiciously and the reasons, cannot be interfered with because such exercise of power is discretionary. Therefore, ordinarily, the trial Court cannot interfere in exercise of such discretion. The Trial Court has given sufficient reasons and has acted judicially, and jurisdiction exercised by it does not suffer from any illegality or perversity. Therefore, the impugned order passed by the Trial Court cannot be interfered. 14. For the reasons stated above, the instant appeal is found to be meritless and the same is, accordingly, dismissed and the impugned order 25.08.2021 passed by the Principal District Judge, Bhaderwah is upheld.