Punjab-Haryana High Court
Bhag Singh And Ors. vs Smt. Gulab Kaur on 28 October, 1999
Equivalent citations: (2000)124PLR547
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Unsuccessful plaintiffs S/Shri Bhag Singh, Gurcharan Singh alias Charan Singh, Pritam Singh, Jaswant Singh alias Bant Singh, Hari Singh and Hardyal Singh, have filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 16.1.1980, passed by the Court of Additional District Judge, Patiala, who allowed the appeal of Smt. Gulab Kaur defendant and set aside the judgment and decree dated 29.9.1978, passed by the Court of Sub Judge, 1st Class, Nabha who decreed the suit of the aforesaid plaintiffs.
2. The brief facts of the case are that plaintiffs filed a suit for declaration that they are the owners and in possession of the Abadi land measuring 6 Biswas situated in village Kansuha Kalan bearing Khasra No. 459 as per copy of the Jamabandi for the year 1970-71 and for permanent injunction restraining the defendant Smt. Gulab Kaur from interfering with their possession in any manner or alienating the same to any person. The case set up by the plaintiffs in the trial Court was that one Mehma Singh son of Hardit Singh was the absolute owner of the Abadi land measuring 6 biswas bearing Khewat/Khatauni No. 6-30 and Khasra No. 459, situated in village Kansuha Kalan and on 25.10.2015, B.K. He sold one biswa for a sum of Rs. 99/- each, to each of the plaintiffs and executed a private sale deed written in the Bahi in the presence of the witnesses and delivered actual possession of the suit land to them. Since then the plaintiffs are in continuous occupation thereof. It is further pleaded that besides this, the plaintiffs have become absolute owners of the site in dispute by way of adverse possession and defendant Smt. Gulab Kaur had no right therein. After the death of Mehma Singh, which took place about one year back, before the institution of the suit, defendant Smt. Gulab Kaur got the mutation in respect of the suit land mutated in her favour besides other property of the deceased intentionally though the plaintiffs were the owners and in possession. It is Alleged by the plaintiffs that they came to know about the act on the part of the defendant on 24.3.1975 when they obtained the copy of the Jamabandi from the Patwari. The defendant was asked to admit the title of the plaintiffs and not to alienate the suit property but to no effect. Hence the suit which was instituted on 29.3.1975 for declaration and injunction.
3. Notice of the suit was given to the defendant who admitted that her father Mehma Singh was the owner of the suit property. She denied that her father sold out the suit land to the plaintiffs or executed any writing in this behalf. The defendant also raised some legal objections; that suit was not within time, that plaintiffs had no locus standi to file the suit and that the suit was not maintainable in the present form.
4. From the pleadings of the parties, the trial Court framed the following issues :-
1. Whether Mehma Singh deceased sold the land in dispute with possession one biswa to each of the plaintiffs for consideration of Rs. 99/- each and executed the sale deed dated 25.10.2015 BK? OPP
2. Whether the plaintiffs are in possession of the suit land for the last more than 12 years ? OPP
3. Whether the defendant got the mutation sanctioned in her name of the land by misrepresentation? OPP
4. Whether the suit is within time? OPP
5. Whether the plaintiffs have no locus standi to file the suit? OPD
6. Whether the suit has been filed without any cause of action? OPD
7. Whether the suit is not maintainable? OPD
8. Whether the alleged sale deed requires registration under the Indian Registration Act? OPD
9. Relief.
5. The parties led oral and documentary evidence in support of their case and on the conclusion of the trial the trial Court decreed the suit mainly for the reasons as contained in paras No. 8, 9, 10 and 13 of its judgment:-
"8. Bhag Singh plaintiff entered the witness box to state their case as PW5. he stated that he had 5 brothers, and all of them purchased one biswa of land for Rs. 99/- each from Mehma Singh deceased and that in this behalf writing Ex. P.7 was made by Sarwan Singh at the asking of Mehma Singh who read over the same and Mehma Singh signed it, after admitting the contents as correct while the witnesses present attested it. The plaintiffs examined the scribe of this private writing, namely, Sarwan Singh. He testified that he had made the writing Ex. P.7 at the instance of Mehma Singh which he read over to him and he signed it accepting the same as correct while witnesses attested it. He also testified that the money was paid in his presence and the possession of the land was delivered on that very day to the plaintiffs. His eye sight had considerably weakened but he was able to read the date 25th as also his signature and that of Kahla Singh attesting witness. The writing was, thus, duly proved by producing the scribe. The plaintiffs, however, examined Joginder Singh, PW4, familiar with the handwriting of Sarwan Singh to depose that the writing Ex. P.7 dated Magh 25th, 2015 BK was written by Sarwan Singh. He explained that he saw Sarwan Singh writing a marriage card of the daughter of Amar Singh to which no exception could be taken. There is neither any animus suggested to this witness for making false deposition. The plaintiffs, have also examined Gian Singh Sarpanch of their village who has testified the sale of 6 biswas of abadi land by Mehma Singh deceased to the plaintiffs for a sum of Rs. 99/- each, and the delivery of possession since then. He is, of course no a signatory of this writing. The defendant examined three witnesses, namely Mikar Singh D.W.1, Kartar Singh D.W.2 and Hardyal Singh D.W.3 besides her own statement in the witness box as D.W.4 but none of them denied the execution of the writing Ex. P.7, by the deceased or even the sale of the land in dispute of the plaintiffs. The evidence of the plaintiffs regarding the purchase of the suit land from Mehma Singh deceased and the making of the writing Ex. P.7, therefore, went unrebutted.
9. A bare look at this writing Ex. P7 allowed to be received in evidence by my learned predecessor, however, shows that it is an unregistered document conveying immovable property measuring 0-6 biswas for a sum of Rs. 594/-. According to Section 17 of the Indian Registration Act, the sale of such immovable property could only be made by a registered instrument. The writing, thus being unregistered is inadmissible regarding the conveyance of title. It may also be added that the defendant filed a revision petition in the High Court against the receipt of this writing into evidence by my learned predecessor. Hon'ble S.S. Sidhu, J. vide his order dated September 7, 1976 dismissed the revision petition holding that the unregistered sale deed in question could be allowed for collateral purposes mentioned in the proviso of section 49 of the Indian Registration Act, while upholding the order of this Court, the Hon'ble Judge made it clear that this unregistered sale deed shall be used only for collateral purposes and not for establishing title of the land mentioned therein. It has, thus, been finally settled that though this writing is inadmissible for purposes of determining title of the plaintiffs, it can be read for the collateral purposes such as delivery of possession etc. In any case, since this unregistered sale deed is inadmissible in so far as title is concerned, the plaintiffs failed to show that they are purchasers of the suit land from Mehma Singh deceased. I accordingly, decide both these issues against the plaintiffs and in favour of the defendant.Issue No. 2
10. The plaintiffs have led overwhelming evidence both oral and documentary to establish that they are in occupation of the suit land as owners for more than the statutory period of 12 years and have, thus, become absolute owners by adverse possession as pleaded in para 4 of the plaint. Bhag Singh plaintiff PW5 testified that actual possession of the suit land was delivered to him and his brothers simultaneously when this writing Ex. P7 was made and that since then they are in continuous occupation of the suit plot where they had installed an Engine, fodder cutting machine and installed other agricultural implements. He added that none except them had occupied the land since the execution of this writing. His testimony finds corroboration from the statement of Sarwan Singh PW2 the scribe of this writing. He added that the possession of this land was delivered on the very day when the writing Ex. P7 was made by him and all the six plaintiffs were in continuous occupation of the suit land since then. He also added that there had never been any person in possession of this land except them, similarly Gian Singh Sarpanch, PW3, testified that the plaintiffs are in possession of the suit plot for the last about 20 years since their purchase from Mehma Singh. Nothing could be elicited from his cross-examination except the bald suggestion that he had given false evidence on account of strained relations with the defendant which the defendant never herself substantiated, Joginder Singh PW4 again testified that the plaintiffs are in possession of the property at the present moment. The defendant, however, nowhere set up the case that she ever was in possession of this abadi plot inherited by her from her father Mehma Singh. As. D.W.4 also, she stated, in the examination-in-chief that nobody was in occupation of the suit plot at the present moment and the land was Barani. Atleast, she did not claim possession of this piece of land. This fact completely shatters the testimony of her witnesses Mikkar Singh D.W.1 and Hardyal Singh D.W.3, who say that Gulab Kaur is in possession of the site in dispute. It is further admitted by Gulab Kaur that she has appointed Hardyal Singh D.W.3, as her Sarbara Lambardar which institution was inherited from her father and Mikkar Singh D.W.1 is his brother. The other witness, namely, Kartar Singh D.W.2 produced by the defendant, however, refused to support her and stated that he did not know as to who was in possession of this vacant site. The evidence led by the defendant regarding her possession is, thus, not dis-integrated and no reliance can be placed upon that particularly when the defendant does not claim possession thereon.
Issue No. 4.
13. According to the plaintiffs, they came to know about the wrong entries in the revenue record only on 24.3.1975 when they obtained copy of the jamabandi from the patwari, Hardyal Singh plaintiff entered the witness box as PW 6 to explain that on learning that the defendant was going to alienate the suit land, they approached her at Nohra and asked her not to make the sales as they had purchased it from her father and that on her refusal they obtained copy of the jamabandi and learned about it. The defendant has, of course denied that Hardyal Singh or anybody else approached her at Nohra or anywhere else. It is, however, settled that a party in occupation of the suit land is entitled to ignore any wrong entry till his title is clouded. The revenue record as seen above consistently shows that right from 1960 the plaintiffs are in continuous possession of the suit plot. They were thus not required to come to the Court earlier unless their possession was sought to be disturbed or title clouded. According to them their title was clouded when the defendant threatened to alienate the same and to interfere with their possession and they learned about the wrong entry on 24.3.1975, only. Therefore, irrespective of the fact that the mutation in respect of the suit land was sanctioned in favour of the defendant on 12.4.1971 vide copy of mutation Ex. D.1 the suit of the Plaintiffs is within time. I, therefore, decide this issue in favour of the plaintiffs".
6. Aggrieved by the judgment and decree dated 29.9.1978, passed by the trial Court, defendant Smt. Sulab Kaur filed the first appeal before the Court of Additional District Judge, Patiala, who for the reasons given in para No. 7 of the judgment allowed the appeal and set aside the judgment and decree of the trial Court and dismissed the suit mainly stating that the oral sale deed which has been relied upon by the plaintiffs and the trial Court, does not convey any right title or interest in the plaintiffs as the document is not registered. The reasons of the learned appellate Court can be quoted in the following manner:-
"The learned counsel for the appellant has contended that the execution of the writing Ex. P.7 in Bahi has not been proved. Issue No 4 and 8 had been decided in favour of the appellant. In view of the findings on these issues by the trial Court, the writing Ex. P7 cannot be looked into even for the collateral purpose. Kahla Singh the attesting witness of the writing is alive, but he has not been produced for the reasons best known to the respondents. P.W.3 Sarwan Singh the scribe of the writing has been produced. He has admitted that he could not read the document and was able to identify the signatures of Kahla Singh witness and his own signatures. It was contended by the learned counsel for the appellant that no reliance can be placed on this testimony of Sarwan Singh as he could not say that the writing was scribed by him. P.W.4. Joginder Singh has been produced by the respondents to prove that he had been seeing Sarwan Singh P.W.3 writing and as such identified his writing Ex. P.7. In his cross-examination he had stated that he had seen Sarwan Singh P.W. 3 writing a letter of the marriage of the daughter of Amar Singh about 16 years back. He had seen no other writing by Sarwan Singh. As such no other reliance can be placed on the testimony of Joginder Singh P.W.4 Bhag Singh respondent while appearing as P.W.5 has stated that Kahla Singh was not produced as he had become deaf. No evidence has been produced to prove that Kahla Singh was not in a position to depose in this case. Even if Kahla Singh was deaf he could read and identify the writing Ex. P.7. This explanation of the respondent is not sufficient without Kahla Singh. In view of these facts I hold that the execution of the writing Ex. P.7 is not proved. As such it cannot be looked into for any purpose. The learned counsel for the respondents had contended that they are entered in possession Billa Lagan Bawaja Bai in column No. 9 jamabandi Ex. P.4. In the column of ownership, the name of the Mehma Singh is mentioned. Even in Jamabandis Exs. P.5 and P.6 Mehma Singh is recorded as owner. This entry has not been challenged by the respondents. The writing Ex. P.7 is dated 25th Magh 2015 BK which is equivalent to the year 1959. The suit was filed by the respondents on 31.3.1975 in which it was alleged that Mehma Singh had died one year before the suit. Had the respondents got the sale deed executed as alleged by them in the year 1959, then they would not wait till the sanctioning of the mutation in favour of the appellant without getting the entries recorded in the revenue records. At least they would get the mutation entered in their names during the life time of Mehma Singh, who had died after about 15 years of the execution of Ex. P.7 in the Khasra Girdawaries Exs. P.1 to P.3 for the years 1961-62 to 1974-75 produced by the respondents, they are shown in possession of the land in dispute as Gair Marusi under Mehma Singh. It was only in the year 1971-72 that the entry of their possession is shown as Gair Marusi Bila Lagan Bawaja Bai. In the Jamabandi Ex. P.4 for the year 1960-61, the respondents are recorded as Gair Marusi. Similarly, in Ex. P.5, the jamabandi for the year 1965-66, they are recorded as Gair Marusi under Mehma Singh. In the Jamabandi Ex. P.6 for the year 1970-71, the respondents are shown in possession as Gair Marusi. From the documentary evidence Exs. P.1 to P.6, the respondents cannot be said to be in adverse possession of the land. The entries in the revenue record shows that they are the tenants under Mehma Singh. As the land in dispute is a vacant site the possession will go with the title. The respondents had failed to prove their title. The findings of the trial court on issue No. 2 are reversed"
7. Aggrieved by the judgment and decree dated 16.1.1980, passed by the Additional District Judge, the present appeal has been preferred by the plaintiffs.
8. I have heard Shri R.K. Aggarwal, Advocate, on behalf of the appellants and with his assistance have gone through the record of the case. Nobody has appeared on behalf of the respondent.
9. I agreed with the reasons advanced by the first appellate Court to a limited extent that the execution of the writing Ex. P.7 in Bahi does not convey any right, title or interest with regard to the ownership because the alleged sale is not of Rs. 99/- but a reading of the said document would show that the land measuring 6 biswas was sold for a sum of Rs. 594/- and as per Section 17 of the Registration Act, the sale of immovable property above Rs. 100/- could only be made by a registered instrument. This document is neither stamped nor registered and, therefore, it is inadmissible regarding the conveyance of the title. In this regard, I endorse the finding of the first appellate Court that the document does not convey any title in favour of the plaintiffs with respect to the suit property. However, under Section 49 of the Registration Act even the unregistered document can be looked into for collateral purposes. It is the case of the plaintiffs that they got the possession of the suit property under the private sale. Khasra Girdawari Exs. P.1 to P.3 pertained to the year 1961-62 to 1974-75. A reading of the same would show that plaintiff have been recorded in possession of the land in dispute as Gair Marusi under Mehma Singh in the year 1971-72. The entry of their possession is shown as Gair Marusi Billa Lagan Bawaja Bai. In Ex. P.5, the jamabandi for the year 1965-66, the plaintiffs have been shown in possession as Gair Marusi under Mehma Singh and as per Ex. P.6, the Jamabandi for the year 1970-71, the possession of the plaintiffs has been shown as Gair Marusi. In other words, it can be said that plaintiffs were in established possession of the property in question on the date of the institution of the suit. In this process, their possession could be protected. It is not a case where the plaintiffs had entered into forcible possession. Earlier, they entered into possession as Gair Marusi and then under the sale deed, which is not admissible and does not convey any title. Under the law as applicable, no injunction can be granted in favour of a trespasser against the true owner but here is not a case of trespasser. The plaintiffs got the possession under oral sale which is not proved legally. Their possession was permissive and established on the date of the institution of the suit, therefore, they could only be evicted in due process of law.
10. I do not agree with the reasons advanced by the trial Court that plaintiffs had perfected their title on account of adverse possession. The plea which was taken up by the plaintiffs was self destructive. An owner cannot take the plea of adverse possession against himself. The case of the plaintiffs throughout was that they have purchased this property from Shri Mehma Singh'. Even otherwise, from the record, it is not proved that they were in possession of the property in a hostile manner under Mehma Singh or his heirs. Rather the entry of 1971-72, shows that plaintiffs were in possession in the capacity of Gair Marusi Billa Lagan Bawaja Bai.
11. In this view of the matter, 1 partly allow this appeal and modify the judgment and decree of the Courts below and grant a relief of permanent injunction in favour of the plaintiffs and against the defendants, restraining the defendant Smt. Gulab Kaur not to dispossess the plaintiffs from the suit property except in due course of law. There shall be no order as to costs.