Punjab-Haryana High Court
Mahabir Singh vs Gurbax Singh on 6 November, 2008
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Regular Second Appeal No. 3501 of 2008 1
In the High Court of Punjab and Haryana, at Chandigarh.
Regular Second Appeal No. 3501 of 2008
Date of Decision: 6.11.2008
Mahabir Singh
...Appellant
Versus
Gurbax Singh
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr.R.K.Joshi, Advocate
for the appellant.
Kanwaljit Singh Ahluwalia, J. (Oral)
The suit for declaration to the effect that the plaintiff is in possession of the land described and detailed in the head note of the plaint on the basis jamabandi for the year 1992-93 and situated in village Mohleke, Tehsil Ajnala, District Amritsar as a prospective vendee with consequential relief of permanent injunction restraining the defendant from forcibly dispossessing the plaintiff from the suit land, was instituted by the plaintiff.
During the course of trial, claim of the plaintiff for declaration was abandoned and the suit was confined only to seek injunction against the defendant.
The defendant has also set up a counter-claim.
First to take the facts as enumerated in the plaint and noticed Regular Second Appeal No. 3501 of 2008 2 by the Courts below.
Appellant-plaintiff had set up a claim that Achhar Singh, father of defendant, being Ex-serviceman, was allotted land by the Government. Before the land could be allotted, Achhar Singh has been said to have entered into two agreements to sell. One agreement to sell was executed on 29.11.1980 which was dependent upon the fact that as and when allotment will be made, the land would be sold to the appellant-plaintiff. It was agreed that the land would be sold at the rate of Rs.3,500/- per acre. It was further stated that on basis of these agreements to sell, appellant-plaintiff came into possession.
Notice of the suit was given to the defendant. Defendant appeared and filed written statement in which preliminary objection was raised that the suit was not maintainable; suit was time barred and there was no cause of action with the plaintiff to file the suit. The execution of agreements to sell (Ex.P3 and P4) was also denied. It was also pleaded that agreement to sell was not executed by Achhar Singh, father of the defendant. Even if it was against the public policy as Achhar Singh was not competent to alienate the suit land, which was allotted to him by the Provincial Government.
Respondent-defendant had also set up a counter-claim, claiming possession of the land measuring 29 kanals 19 marlas stating that the land was originally allotted to his father. He is only legal representative of Achhar Singh and two years ago, possession was taken by the appellant-plaintiff, forcibly.
Replication to the suit was filed wherein averments made in the plaint were reiterated. In the written statement filed to the counter- Regular Second Appeal No. 3501 of 2008 3 claim, what has been stated in the plaint has been reiterated. Learned trial Court had formulated the following issues:-
1. Whether Achhar Singh, deceased executed an agreement to sell in favour of the plaintiff on 29.11.1989? OPP
2. Whether the plaintiff is entitled to the declaration and injunction, as prayed for?
OPP
3. Whether the suit is not maintainable in the present form? OPD
4. Whether the suit is time barred? OPD
5. Whether the plaintiff has got no cause of action to file the present suit? OPD
6. Whether Achhar Singh was not in a capacity to alienate the suit property for 20 years? OPD
7. Whether the defendant is entitled to recover the possession of the suit property in counter-claim? OPD 7A Whether the possession of the plaintiff is liable protection under Section 53-A of Transfer of Property Act? OPP
8. Relief".
Plaintiff himself appeared as PW.1. He also examined Kulbhushan Rai, Deed Writer as PW.2, Sukhwinder Singh, Deed Writer as PW.3 and tendered into evidence copy of jamabandi for the year Regular Second Appeal No. 3501 of 2008 4 1987-88 as Ex.P2, jamabandi for the year 1992-93 as Ex.P1 and copy of Girdawari as Ex.P4 and closed his evidence.
The defendant himself appeared as DW.1 On Issue No.1 learned trial Court held that as per the agreement to sell, Rs.5,000/- was paid by the appellant/plaintiff. Execution of the agreements to sell Ex.P3 and P4 were held to be valid and claim of defendant that they were forged and frivolous was not accepted. Learned trial Court held as under:-
"...The plaintiff has led cogent and clear evidence regarding execution of agreement to sell dated 29.11.1980".
On issues No.2 and 5, it was held that since claim of declaration has been abandoned by the counsel during the course of the trial and his statement has been suffered by the plaintiff, therefore, no declaration can be granted. Similarly, it was held that the plaintiff has got a cause of action to file the suit.
Issues No.3, 4 and 6 were not pressed by the defendant. The crucial issue whether the plaintiff has come into possession and can claim part performance of the agreements to sell was examined by learned trial Court. Learned trial Court heavily relied upon two agreements to sell i.e. Ex.P3 and Ex.P4 and held that since there is no recital in these agreements that possession has been delivered, therefore, the appellant cannot claim part performance of the contract. Having held that assertion of the plaintiff that, from the revenue record, particularly from the jamabandi for the year 1987-88 Ex.P2, jamabandi for the year 1992-93 Ex.P1 and khasra girdawari Regular Second Appeal No. 3501 of 2008 5 Ex.P4, since it has been stated therein that appellant has been in possession, therefore, from these documents the possession of the plaintiff should be considered. Learned lower Appellate Court held that the entry made in the revenue record is that same is in possession of Provincial Government through Achhar Singh son of Bishan Singh as Gair Marusi and Fauji allottee through Mahabir Singh son of Darshan Singh. Therefore, relying upon this, learned Court held that from the revenue record also possession of the appellant is not made out.
Mr. R.K.Joshi, Advocate, appearing for the appellant/plaintiff has stated that learned Courts below have ignored Column No. 9 of the revenue record wherein it has been stated that the appellant is a prospective vendee. Though from the revenue record i.e. jamabandies possession can be seen but the status of the person regarding the claim over the land qua the title cannot be determined. Once the petitioner is claiming that he has come in possession on strength of documents (Annexures P3 and P4) which does not contain a recital that the possession has been delivered, therefore, the fact that he is a prospective vendee will not vest any right in the appellant especially when in the column of possession, it has been stated that the possession is of the Provincial Government through Achhar Singh son of Bishan Singh as Gair Marusi and Fauji Allottee through Mahabir Singh son of Darshan Singh, plaintiff. Another fact to counter this, learned trial Court has taken into consideration is that plaintiff is not a novice but an Advocate by profession.
Mr. Joshi states that this fact has been wrongly recorded in the opening lines of the judgment. Be that as it may, petitioner has failed Regular Second Appeal No. 3501 of 2008 6 before the two Courts below and the concurrent finding of fact is against the appellant. Mr. Joshi has relied upon a judgment of this Court in Hans Raj and Others v. Banta Ram and Others 2007 (4) Recent Civil Reports 400 to state that injunction in favour of person in possession on the basis of part performance of agreement to sell is justifiable. This is not applicable to the facts of the case as earlier stated that the delivery of possession is not noticed in two documents (Annexure P3 and P4) which are agreements to sell. Similarly, appellant is not entitled to any benefit from the observation made by learned Single Bench of Madhya Pradesh High Court in Ghanshyam and Others v. Babulal 2004(4) Recent Civil Reports 83.
Learned counsel has further relied upon M/s Rachitech Engineering Private Limited, Faridabad v. M/s Kundan Steels Private Limited, Faridabad, 2007(3) Recent Civil Reports 182 to say that under Section 53A of the Transfer of Property Act, as per the ingredients noticed by the Court, he was entitled to a relief of permanent injunction. Perusal of judgment show that fourth ingredient which has been noticed by the Court is that transfer of possession of property must be in part performance of the contract. Since reliance has been made on documents (Annexure P3 and P4) to claim interest in the land and the same nowhere states that the possession was delivered. The documents (Annexure P3 and P4) cannot be relied upon for convenience of the appellant/plaintiff. Mr. Joshi has further placed reliance upon Maman Singh v. The Resident Magistrate, Gohana and Others 1965 Vol. LXVII Punjab Law Reporter 161 to say that the column of cultivation in jamabandi which gives the name of person in Regular Second Appeal No. 3501 of 2008 7 cultivation must be taken into consideration. In that case, person was noticed as a tenant. In the present case, interest of the plaintiff as a prospective vendee accrued from the documents which specifically states that no possession was delivered, therefore, the appellant cannot derive any benefit from this column No.9 of Jamabandi.
In view of the concurrent findings of fact recorded by the two Courts below, after appreciation of evidence, no re-appraisal and re- appreciation of evidence by this Court is permitted in the present regular second appeal. Hence, no substantial question of law has been formulated which should detain the attention of this Court. Hence, there is no merit in the present appeal and the same is dismissed.
(Kanwaljit Singh Ahluwalia) Judge November 6, 2008 "DK"