Punjab-Haryana High Court
Sat Pal And Others vs Mangal Dass And Others on 21 August, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.2774 of 2012 (O&M)
Date of decision: 21st August, 2013
Sat Pal and others
Appellants
Versus
Mangal Dass and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. V.K. Sandhir, Advocate for the appellants.
Mr. Vipul Aggarwal, Advocate for respondents No.1 to 5.
RAKESH KUMAR GARG, J.
Defendants have approached this Court by filing the instant appeal challenging the judgments and decrees of the courts below whereby suit of the plaintiff-respondents for possession of the suit property has been decreed.
Brief facts of the case, emerging out from the impugned judgments and decrees of the courts below, are that house No.14/13, Gali No.1, Muslim Ganj, Amritsar was originally an evacuee property belonging to the Central Government and the same was allotted to plaintiff-Bachan Kaur (predecessor in interest of respondents No.1 to
5). Mutation No.4719 of the same was also sanctioned in her favour with regard to the aforesaid property which she had purchased from the Assistant Settlement Officer-cum-Managing Officer, Rehabilitation Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 2 Department, Jalandhar. Initially Gurditta Mal, father of the appellants, was licencee in the suit property and was allowed to live there by plaintiff Bachan Kaur as well as her husband Puran Chand, and since his death the defendants (the appellants) are in possession of half share of the aforesaid property as licencees. After the death of Gurditta Mal and Puran Chand (husband of plaintiff Bachan Kaur), appellants have started claiming themselves to be the owners of the property in dispute, in which they have no right to do so. Thus, plaintiff- respondents served a legal notice upon the appellants on 05.11.1997 revoking their licence and since the appellants had no right, to retain the property, necessity arose to file the instant suit.
Upon notice, defendants filed written statement and contested the suit by taking a plea that the property was not allotted exclusively in the name of plaintiff Bachan Kaur, but the same was possessed by Puran Chand, husband of plaintiff Bachan Kaur, and Gurditta Mal jointly, having half share each in the property in dispute. It was further alleged that the disputed property was partitioned half each between Gurditta Mal, father of defendants, and Puran Chand, husband of plaintiff Bachan Kaur, with consent of both the parties due to the reason that Gurditta Mal had also paid the price of house along with Puran Chand in order to make final payment to the Central Government and documents were executed between Puran Chand and Gurditta Mal. Defendants are Legal Heirs of Gurditta Mal and are in possession of the property in dispute for more than 36 years without Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 3 any hindrance or dispute. It was further alleged that plaintiff Bachan Kaur had fraudulently obtained sale certificate in her name without disclosing the share of Gurditta Mal and the same is thus a forged and fabricated document. It was further alleged that Bachan Kaur was the owner of half share of the property in dispute and remaining half share was owned by Gurditta Mal and he was never a licencee in the property nor any such licence deed was ever executed by Gurditta Mal either in favour of Puran Chand or Bachan Kaur. It was asserted that during his lifetime, Gurditta Mal paid his share in cash to Puran Chand and a document dated 14.05.1962 was executed wherein Puran Chand bound himself that after receipt of sale certificate from the Rehabilitation Department, Government of India, he will execute the sale deed in favour of Gurditta Mal; but it was not so done by Puran Chand and after his death plaintiff Bachan Kaur procured the certificate of allotment fraudulently. It was further alleged that even defendants have constructed half share of the property in dispute from their hard- earned money. It was admitted that the suit for declaration between the parties is pending before the Civil Court. The remaining averments of the plaintiff-respondents were denied and dismissal of the suit was prayed for.
Replication was filed by the plaintiff wherein she reiterated the stand as taken in the plaint and denied the averments made by the defendants in their written statement. On the pleadings of the parties, following issues were framed by the trial Court:
Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 4
"1. Whether the plaintiff is entitled to the possession of ½ share of the property in dispute? OPP
2. Whether the defendants are owners of licence of the property in dispute? OP Parties
3. Relief."
While decreeing the suit of the plaintiff-respondents, the trial Court observed as under:
"14. Admittedly there is no dispute to the effect that Bachan Kaur was originally allotted the suit property and even the cross-examination of DW-1 Kharaiti Lal reveals that he has not seen any receipt as per which Gurditta Mal made any payment to the department and even he does not know regarding making any payment by Gurditta Mal to Puran Chand. His cross-examination further reveals that Bachan Kaur is owner of the suit property. Similarly, DW2 Kasturi Lal also admitted Bachan Kaur as owner of the suit property. There is dispute with regard to ½ share possession of defendants over the suit property as defendants have failed to produce any document to show that Gurditta Mal made any payment in respect of suit property either to Puran Chand or to the Government Department. Documents put on record by defendants do not establish ownership of defendants qua suit property. Moreover, defendants did not lodge any protest against alleged forgery of allotment/ownership documents by deceased plaintiff Bachan Kaur. Cross- examination of DW9 Sat Pal one of the defendants further reveals that he has admitted that his father Gurditta Mal Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 5 did not any claim in respect of suit property and he also admitted that he does not possess any receipt regarding making payment to the department as same are in the name of Puran Chand. The testimony of these material witness examined by defendant indicate that they have failed to establish link of defendants with the suit property so far as the question of ownership is concerned.
15. Defendants are in fact relying upon agreement dated 11.5.62 which is Ex.DW5/1 but admittedly same was executed between Puran Chand husband of deceased plaintiff Bachan Kaur and father of defendant Gurditta Mal but it has been squarely established on record that suit property was allotted to deceased plaintiff Bachan Kaur vide document Ex.P9 and Puran Chand never assumed status or owner of the suit property. In other words, he never became owner of the suit property and in such situation the alleged agreement executed by him with Gurditta Mal carries no value since he was not owner of the property in respect of which he allegedly executed any agreement with Gurditta Mal. Perusal of copy of judgments Ex.PA and Ex.PC indicates that defendants were not held to be owner of the suit property by the respective civil courts on the same proposition that Puran Chand was not having any right or interest in the suit property in respect of which the agreement dated 14.5.62 was executed and since he did not acquire any title of the suit property, he was not competent to enter into alleged agreement to sell and to deliver the possession thereof since deceased Bachan Kaur was allottee/owner of the suit property. It is also held Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 6 in Judgment Ex.PC that for constituting the transfer one of the terms necessary is that person contracting must be the owner of immovable property for the sale of which he is entering into contract and Puran Chand was never owner of the house in dispute and therefore, he was not competent to execute the agreement dated 14.05.62. Both these judgments against defendants of present case also nullify the claim of defendants in respect of suit property. Admittedly there was no appeal against these judgments which thus attained finality in such eventuality. The judgments relied upon by learned counsel for defendants are of no assistance to the case of defendants as the agreement in question was by person who was not owner of the suit property and who had got no right to enter into any agreement in respect of suit property which is not under his ownership. More so, during any point of time, defendants made no effort to move for specific performance of this agreement and which again debars defendants from raising the plea regarding their ownership over the suit property which is admittedly under their possession to the extent of ½ share. Thus defendants are not entitled to retain the possession of suit property. There is no vestige on record qua the ownership of the defendants over the suit property and document Ex.DW4/1 assessment register containing the name of Shiv Dass defendant as owner of suit property does not confer the title of the suit property upon defendants admittedly which stood in the name of deceased plaintiff Bachan Kaur. Doubtless license be expressed or implied. Therefore, the status of defendants over the suit property Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 7 is of licencee and accordingly which stood fulminated by issuance of notice to him by plaintiff which is Ex.P6 which was admittedly received by defendants. Even if there is nothing on record to show that there is no date/terms of the issuance of licnece but the same does not absolve defendants of their status as licencee and they are under obligation to hand over the vacant possession to the plaintiffs.
16. Thus, the nature and bulk of evidence led on record and discussion thereon of facts and law point leads to the conclusion that plaintiffs are entitled to possession of the half share of the property in dispute and therefore, both these issues are decided in favour of plaintiffs and against defendants."
Aggrieved from the aforesaid judgment and decree of the trial Court, the defendants filed an appeal before the first appellate Court but the same was also dismissed vide judgment and decree dated 27.03.2012. The findings of the lower appellate Court may also be perused, which read thus:
"13. The plaintiff Bachan Kaur has placed in evidence Ex.P1, the document which mentions name of Bachan Kaur as a purchaser. Therefore, the appellant- plaintiff has succeeded in proving that the disputed property has been allotted in her name. Further, the Jamabandi Ex.P4 also mentions her name in the column of ownership and in column No.5, the entry is Makbuja Malak. The case of the defendants in the written statement is that the property in dispute was possessed Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 8 by Gurditta Mal and Puran Chand jointly and severally to the extent of half share and they are in possession accordingly in their respective shares but the revenue record to which the presumption of truth is attached does not state so. Ex.P9 has already been produced in evidence to prove her title in the property in dispute. On the other hand, DW1 has stated that he has never seen any receipt regarding the payment of Gurditta Mal to the Department. He also stated that he has no knowledge regarding the payment by Gurditta Mal to Puran Chand. He even stated that he has never seen any document of title in favour of defendants. Even, DW2 Kasturi Lal son of Des Raj stated that he has never seen any receipt regarding the payment. He even admitted that there is no registry in favour of Puran Chand and did not deny that there is one in favour of Bachan Kaur. He did not deny that the name of Bachan Kaur is reflected in the revenue record. He even admitted that there is no document of title in favour of defendant or his father. Both these witnesses could not tell even the measurement of the land. DW-2 Raj Kumar admitted that he has not seen any document regarding the purchase of property by Gurditta Mal in favour of Puran Chand. Further, in the cross- examination, he stated that he has seen the document of title, i.e. sale deed in favour of Puran Chand and Satpal by both but in any case, no such document has been exhibited in evidence. Even, DW Kanwaljit Singh, Sale Clerk, admitted that the sale certificate of the suit property has been issued in the name of Smt.Bachan Kaur and the original sale certificate is Ex.P-9. Therefore, in any case, Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 9 the witnesses of the defendants even could not prove the case of the defendants and have rather supported the case of the plaintiff. The evidence that the suit property has been purchased by Bachan Kaur in favour of her has not been proved by way of any evidence fraudulently as alleged in para No.2 of the written statement. Plaintiff, as discussed above has led sufficient evidence by proving on record the sale certificate Ex.P-9 and the copy of Jamabandi Ex.P4. The defendants could not place on record any evidence regarding the payment having been made by them, to the Department. Till today, no complaint has been lodged by the defendant regarding the alleged forgery of allotment/ownership of document by the deceased plaintiff. Shiv Das and Satpal have filed the civil suit No.159 of 1999, for seeking declaration to the effect that they are owners in possession of the property out of House No.14 but the said suit was dismissed and that the agreement dated 14.4.1962 was also proved by them and even the appeal against the said judgment has been dismissed by the Court of Shri Satwinder Singh the then learned Additional District Judge, Amritsar which was dismissed and it seems to be the final judgment since no further order from the Hon'ble High Court has been placed on record to show as to whether the defendants filed any second appeal. Therefore, under these circumstances, the plaintiff has adequately proved her case as detailed above. Therefore, due to aforesaid reasons, the judgment passed by the learned trial Court is correct appreciation of the facts and oral and documentary evidence, thus warranting no interference in Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 10 the same. Accordingly, the appeal filed by the appellants is hereby dismissed, leaving the parties left to bear their own costs. Decree sheet be prepared. Trial Court record be returned immediately and the appeal file be consigned to the record room."
The defendants are in second appeal before this Court against the aforesaid judgments and decrees of the courts below. It has been submitted on behalf of the appellants that following substantial questions of law arise in this appeal for consideration of this Court:
"i) Whether the appellants are entitled to the protection provided under Section 53A of the Transfer of Property Act?
ii) Whether the appellants are entitled to the ½ share in view of the agreement to sell entered between Puran Chand and Gurditta Mal?
iii) Whether in the absence of any proof of income by Bachan Kaur and any allotment letter prior to the transfer of property on her name gives presumption that it was Puran Chand, who was allotted the property?
iv) Whether the documents showing the proper ½ share of property, draws presumption in favour of appellants that the agreement was implemented in letter and spirit?
v) Whether the judgments of the courts below are based upon correct appreciation of facts and appreciation of law?"Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 11
In support of his case, learned counsel for the appellants has vehemently argued that the appellants have proved on record that they have been living in the property in dispute being its owners for the last more than 30 years and they have further proved by producing the evidence on record that they are owners in possession of the property in question on the basis of an agreement to sell dated 14.05.1962 executed between Puran Chand and Gurditta Mal, which has been duly proved on the file. However, the courts below have wrongly disbelieved the said documents produced by the appellants and has not considered the applicability of protection provided by Section 53 of the Transfer of Property Act, 1882. It has been further proved from the record that half share of the price of the total property has been paid by Gurditta Mal and Bachan Kaur has got the allotment orders issued in her name only fraudulently. Moreover, they have renovated the property in dispute by spending their own money and they have got installed electricity connection in their name and have also got separate water and sewerage connection, and are in possession exactly of half share of the total property which proves their stand and thus, the findings of the courts below, which are the result of misreading of evidence, are liable to be set aside being perverse.
I have heard learned counsel for the parties and have perused the impugned judgments and decrees of the courts below and the other record with the help of learned counsel for the parties. Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 12
At the outset, it may be noticed that the appellants filed Civil Suit No.159 of 1997 in the Court of Mr.Ashok Kapoor, Civil Judge (Jr. Divn.) Amritsar seeking declaration to the effect that they are owners in possession of the suit property with a consequential relief of permanent injunction restraining plaintiff-respondents from interfering into their possession or alienating the suit property in any manner. In the aforesaid suit, the Civil Judge (Jr. Divn.), Amritsar vide his judgment dated 01.09.1999 came to a specific conclusion that Puran Chand was not having any interest in the said property, and therefore, he was not competent to enter into the impugned agreement to sell and deliver the possession by way of part performance of agreement to sell; and that the appellants have failed to show that they were in possession of the said property as owners and consequently, the said suit filed on behalf of the appellants was dismissed. Not only this, the appeal filed by the appellants against the aforesaid judgment and decree dated 01.09.1999 was also dismissed by Mr.Satwinder Singh, Additional District Judge, Amritsar vide his judgment dated 05.02.2005.
Learned counsel for the appellants could not dispute the factum of passing of the aforesaid judgments and decrees against the appellants. He could further not dispute that the said suit for declaration was filed by the appellants exactly on the same facts and averments as pleaded in their defence in the instant suit. It has not been shown before this Court that the aforesaid judgment and decree dated 01.09.1999 passed in Civil Suit No.159 of 1997 against the appellants Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.2774 of 2012 (O&M) 13 or the judgment and decree dated 05.02.2005 passed in the appeal filed on behalf of the appellants against the aforesaid judgment and decree dated 01.09.1999, has in any manner been modified, set aside or varied.
In view of the fact that all the arguments, as raised before this Court, have been answered against the appellants in the earlier litigation; this Court finds no merit in this appeal.
No substantial question of law, as raised, arises in this appeal.
Dismissed.
(RAKESH KUMAR GARG) JUDGE August 21, 2013 rps Singh Rattan Pal 2013.08.23 16:57 I attest to the accuracy and integrity of this document High Court, Chandigarh