Punjab-Haryana High Court
Jeet Singh Alias Ranjit Singh vs Baboo Singh (Died) Represented Through ... on 12 May, 1997
Equivalent citations: (1997)116PLR637
JUDGMENT N.K. Kapoor, J.
1. This is defendant's appeal against the judgment and decree of the Addl. District Judge whereby the appeal preferred by the plaintiffs was accepted thus decreeing the suit.
2. Plaintiffs filed a suit for permanent injunction restraining the defendant from encroaching upon the vacant land owned and possessed by them. The claim set up by the plaintiffs was contested by the defendant. Defendant in his written statement stated that plaintiffs are neither owner nor in possession of the suit property in dispute. It was further pleaded that the site in dispute belongs to one Surjan who sold it to the defendant vide sale deed dated 30.3.1970 and ever since then defendant is in possession of the site in dispute. Not only this, he has constructed a boundary wall, kitchen and stairs on the site in dispute in April, 1973 and that the suit is not maintainable in the present form.
3. On the pleadings of the parties, following issues were framed.
1. Whether plaintiffs are the owners of the property in dispute?
2. Whether the plaintiffs are in possession of the property in dispute since before the institution of the suit, if so, its effect?
3. Whether the defendant has disobeyed the interim injunction order of this court despite service? OPP
4. Relief.
Under issue No. 1, the court held that property in dispute was owned by Surjan Singh who had sold it to the defendant and so defendant is owner of the property in dispute whereas the plaintiffs have no right, title or interest in the same. Issues No. 2 and 3 were taken up together by the trial court. The trial court came to the conclusion that defendant is owner in possession of the suit property, so defendant cannot be said to have disobeyed interim injunction granted by the court. Resultantly, the suit of plaintiffs was dismissed.
4. The lower appellate court once again examined the matter in the light of evidence adduced by the parties. The lower appellate court on reconsidering the matter came to the conclusion that neither of the parties have been able to establish their title with respect to the property in dispute. According to learned Addl. District Judge, six sale deed (un-registered) produced by the plaintiffs, each for a sale consideration of Rs. 99/-, does not inspire confidence. Similarly, the Court came to the conclusion that sale deeds Exhibit D-1 is nothing but a mere paper transaction and same does not confer any title upon the defendant. As regards possession, court came to the conclusion that plaintiffs were put into possession way back in the year 1952 (when sale deeds Exhibit P-1 to Exhibit P-6 were executed though not admissible) but have been dispossessed three months prior to or even less than that from the filing of the suit. The court further held that since a person who has been dispossessed can bring a suit on the ground of his dispossession can ask for injunction, the appellate court accepted the appeal, reversed the judgment and decree of the trial court and so restrained the respondent from interfering in the possession of appellant-plaintiffs with respect to the property in dispute.
5. Feeling aggrieved by the judgment and decree of the Addl. District Judge, defendant has preferred this appeal. According to the counsel, the lower appellate Court has erred in law in brushing aside a duly executed sale deed Exhibit D-1. It being a registered document and proved according to law could not be ignored by the court while dealing with the respective claims set up by the parties. Counsel further argued that there is no manner of doubt that erstwhile owner has had title in the property and so could dispose of for a valuable consideration. Mainly for the reason that attesting witnesses are close relations of defendant or one of them belongs to a different village could hardly be a ground to discard a registered document. Finding of the lower appellate court in this regard deserves to be reversed. The lower appellate court further erred to the conclusion that plaintiffs were not in possession of the suit land on the date when the suit was instituted. This being the accepted position, no injunction could be granted by the court as the relief of possession was not claimed, the appeal ought to have been dismissed.
6. I have heard learned counsel for the appellant as well as have perused the judgments of the courts below. Basis of claim of the appellant-defendant is sale deed Exhibit D-1 dated 30.3.1973. Vide sale-deed Exhibit D-1, one Surjan Singh is stated to have sold this property to the present appellant for a consideration of Rs. 2,000/-. This document is duly attested by the attesting witnesses who have appeared in the witness box and deposed to the execution of sale deed. In view of this statement, this document was exhibited as D-1. Surjan Singh was not examined as a witness though he is alive. The lower appellate court while dealing with this document has observed that both the attesting witnesses are near relations of defendant-appellant and belong to a different village. The court has further observed that there is no clear evidence on record that Surjan Singh owned any land in the village and on this basis further observed that 'sale deed Exhibit D-l is nothing short of a mere paper transaction and did not pass ant title in the property'. Except for the deposition of Mohinder Singh and Prem Singh, DW1 and DW2 respectively,- attesting witnesses of sale deed Exhibit D-1, no other witness has been examined by the defendant to prove that Surjan Singh owned this property or even owned any land in this village. Thus, even if it be taken that sale deed has been duly proved, at best, defendant would be deemed to have come into the footsteps of Surjan Singh. This by itself will not be sufficient to resolve the present controversy as the salient issue of possession is yet to be determined. As regards the defendant's claim to possession of property, the same obviously cannot be earlier than 30.3.1973.
7. On the other hand, plaintiffs have adduced in evidence sale deeds Exhibit P-1 to P-6 which are of the year 1952. On the basis of these documents, plaintiffs are stated to have been put in possession. Lower appellate court has ignored the sale deeds Exhibit P-1 to P-6 as well but at the same has kept these in consideration to determine the issue of possession. The approach of lower appellate court appears to be just. As per sale deeds Exhibit P-1 to P-6, plaintiffs were put in possession i.e. sometime in the year 1952. No attempt was made to interfere with their possession during all these years. The present suit was filed on 11.6.1973. By way of interim measure, it was prayed that defendant be restrained from interfering in their peaceful possession. According to the plaintiffs, despite interim stay granted by the court, defendant forcibly dispossessed the plaintiffs. However, according to defendant, he was in possession of the suit property before the plaintiffs approached the court. The lower appellate court on considering this matter has come to a conclusion that plaintiffs appear to have been dispossessed about three months before the institution of the suit or even little less then that. The lower appellate court after having come to the conclusion that the plaintiffs had been dispossessed from the suit land about few months before the institution of the suit or little less, all the same allowed the appeal by relying upon the decision of the Apex Court in case reported as Somnath Berman v. Dr. S.P. Raju and Anr., AIR 1970 S.C. 846 wherein it has been held as under :-
"Section 9 of the Specific Relief Act is in no inconsistent with the position that as against a wrong-doer, prior possession of the plaintiff, in an action of ejectment, is sufficient title, even if the suit be brought more than six months after the act of dispossession complained of and that the wrong doer cannot successfully resist the suit by showing that the title and right to possession are in a third person. Therefore, a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession."
8. Plaintiffs prayed for permanent injunction restraining the defendant from encroaching upon the vacant site owned and possessed by the plaintiffs and by way of interim injunction sought a restraining order against the defendant not to interfere in their peaceful possession. As noticed above, both the courts have come to a conclusion that plaintiffs were dispossessed (though unauthorisedly few months prior to the institution of the civil suit). Such being the case, relief sought by the plaintiffs is not permissible in law. As per Section 34 of the Specific Relief Act, no court is to grant declaration sought in case plaintiff being able to seek further relief than a mere declaration of title, omits to do so. In the context of the present case, it was incumbent upon the lower appellate court to ask the plaintiffs whether they would like to amend the suit and so claim relief of possession in the alternative or not. This has not been done as the court thought that it is not a case of complete ouster and so in such a case a suit for perpetual injunction is maintainable. The view taken by the lower appellate court is erroneous. The court having come to the conclusion that defendant is in possession of the suit property, decree of perpetual injunction does not entitled the decree-holder to possession of the property on its basis. Thus, I am of the view that the lower appellate court ought to have asked the plaintiffs to amend the plaint hereby seeking relief of possession as an alternative plea. Accordingly, I accept the appeal, set aside the judgment and decree of the courts below and remand the case to the trial Court for fresh adjudication. The trial court shall permit the plaintiffs to amend the plaint, and, if need be, allow them to adduce evidence and thereafter decide the case. Since the parties are litigating for the last about 24 years, trial court is directed to decide the matter without any further delay and preferably within a period of six months from the receipt of copy of judgment of this Court.