RSA No.2302 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2302 of 1985 Date of Decision: 20.09.2010 Teja Singh & Ors. ..Appellants Vs. Balwant Singh ..Respondent CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.S.N.Saini, Advocate, for the appellants. Mr.L.M.Suri, Sr. Advocate, with Mr.Neeraj Khanna, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This is defendants' regular second appeal against the judgment and decree dated 12.3.1985 passed by the learned courts below. Plaintiff/respondent filed a suit for permanent injunction by RSA No.2302 of 1985 2 pleading therein that the suit land comprised in Khata No.76/95, Khasra No.10//11/8-0, khata No.223/300, Kh.No.10//20/1/4-0, 21/2/3-0, 11//21/1/10/0-2, situated in village Daula Tehsil Sultanpur Lodhi, District Kapurthala was under the ownership of Barkat Singh son of Sunder Singh i.e. father of defendants No.1 to 7 and husband of defendant No.8. Late Barkat Singh agreed to sell the suit land by executing an agreement to sell dated 26.12.1962 for a total sale consideration of ` 1,216/- (Rupees one thousand two hundred and sixteen only). A sum of ` 250/- (Rupees two hundred and fifty only) was paid as earnest money at the time of execution of agreement, and the remaining amount was to be paid at the time of execution of the sale deed. Possession of the land was delivered to the plaintiff/respondent at the time of agreement. The proprietary right after the death of Barkat Singh devolved upon the defendants being his legal representatives. The case of the plaintiff/respondent was, that in view of the proprietary rights conferred on the defendants/appellants, they were threatening to alienate, the suit land to somebody else and were also threatening to dispossess the plaintiff by force, without following due process of law. Prayer was made for injunction, restraining the defendants, from alienating the suit land or from interfering in possession of the plaintiff/respondent. On notice, suit was contested, wherein it was pleaded, that father's name of Barkat Singh was not Sunder Singh but Shankar Singh. Agreement was said to be vague, indefinite and not fair, therefore, not enforceable. It was also pleaded that the land in dispute was never allotted RSA No.2302 of 1985 3 to Barkat Singh. Defendants also denied the execution of the agreement of sale in favour of the plaintiff/respondent. Possession of the plaintiff/respondent was also disputed. On the pleadings of the parties, learned trial court framed the following issues. 1. Whether Barkat Singh deceased executed the agreement for sale of the land in dispute in favour of the plaintiff? OPP 2. Whether the plaintiffs are in possession of the land in dispute on the basis of agreement as alleged, if so its effect? OPP 3. Whether the plaintiff is entitled to the injunction prayed for? OPP 4. Whether the suit in the present form cannot proceed? OPD 5. Whether the agreement is vague, indefinite and not clear and not specific as alleged, if so its effect? OPD 6. Relief. Learned trial court on appreciation of evidence, on issue No.1 recorded the finding, that at this stage it was not sustainable that Barkat Singh or his legal representatives should be bound by the agreement or restrained from alienating the suit land, as the plaintiff/respondent had not taken any step to enforce the agreement since the year 1962. On issue No.2, learned trial court held, that though the RSA No.2302 of 1985 4 plaintiff/respondent was recorded in possession as per Jamabandi Ex.P.5, but it could not be held that plaintiff was in possession under the agreement to sell, because it was not so recorded in the Jamabandi/or the agreement to sell. On issue No.3, learned trial court held, that the agreement of sale, in the year 1962 was unsustainable, at this stage to bind the legal representatives of the deceased Barkat Singh. Plaintiff was not held to be entitled to injunction prayed for restraining the defendants from alienating the suit land. Issue No.4 was decided against the defendants for want of evidence. On issue No.5, agreement was held to be not specific and clear. However, in the relief clause, the suit was ordered to be partly decreed to the extent, that defendants/appellants were restrained, from taking forcible possession of the suit land, while declining injunction against the alienation of the suit property. Detailed findings recorded by the learned trial court are not noticed, as it will not be relevant for decision of this appeal. The defendants/appellants preferred an appeal. Learned Additional District Judge agreed with the findings of the learned trial court and dismissed the appeal. Mr.S.N.Saini, learned counsel appearing on behalf of the appellants contends, that this appeal raises the following substantial questions of law, for adjudication by this court:- 1. Whether the suit as framed was maintainable? RSA No.2302 of 1985 5 2. Whether the judgment and decree passed by the learned courts below in granting injunction against his dispossession is the outcome of misreading of evidence and being contrary to the findings is perverse? In support of the substantial questions of law, the learned counsel for the appellant vehemently contended, that the suit filed by the plaintiff/respondent was based on agreement to sell under which it was claimed, that the plaintiff/respondent was put in possession. The contention of the learned counsel for the appellant was, that the reading of the agreement to sell shows that no possession was given to the plaintiff/respondent at the time of agreement to sell, nor it could be given, as late Barkat Singh had not been allotted any land till then. It was also the contention of the learned counsel for the appellants, that a positive finding was recorded by the learned courts below, holding the plaintiff/appellant was not in possession under the agreement to sell, therefore, there arose no question to grant injunction in favour of the plaintiff/respondent. Learned counsel for the appellant further contended, that the jamabandi Ex.P.5, could not be a ground to grant injunction, as in view of the proved facts the entry in the jamabandi was to be ignored for the reason, that though presumption of truth is attached to the revenue record, but it is rebuttable. The very fact that a finding was recorded that there was no stipulation in the agreement regarding delivery of possession, therefore, RSA No.2302 of 1985 6 the entry in the revenue record was required to be ignored, specially, when the land in dispute was recorded as Banjar, and the possession of such land was to go with the title. On the basis of the contention referred to above, it was asserted that the finding of possession, by the learned courts below was perverse being outcome of misreading of evidence. Mr.L.M.Suri, learned senior counsel appearing on behalf of the respondent on the other hand, contended that as Ex.P.5 Jamabandi showed the possession of the plaintiff/respondent, therefore, the judgment does not suffer from any error. The respondent/plaintiff being in possession under the agreement to sell was entitled to protect possession as he could not be dispossessed except with due process of law. It was the contention of the learned counsel for the appellants, that the agreement to sell does not vest any title in the intending vendee, as it is the registered sale deed which could transfer title in favour of the plaintiff/respondent, to claim any right in the property. The contention of the learned counsel for the appellants was, that the suit for injunction was barred under section 41 (h) of the Specific Relief Act, 1963, when equally efficacious relief could be availed. The plaintiff/respondent had a remedy of specific performance, he could, therefore, not file suit for injunction, being barred under Section 41 (h) of the Specific Relief Act. On consideration, I find force in the contention raised by the learned counsel for the appellants. Once under the agreement to sell possession was not handed RSA No.2302 of 1985 7 over, and the entry of possession in the revenue record was not supported by any title or right. Furthermore, the land being Banjar, the possession was to go with title, which admittedly was with Barkat Singh, and not with the plaintiff/respondent. No reliance could be placed on Ex.P.5 to hold, that the plaintiff/respondent, was in possession of the property in dispute, to grant injunction in his favour. Learned courts below have recorded a concurrent finding of fact, that the plaintiff/respondent was not in possession under the agreement to sell. Learned counsel for the appellant was also right in contending, that the suit as framed was barred under section 41 (h) of the Specific Relief Act, as the remedy, if any, with the plaintiff /respondent was to file suit for specific performance. The substantial questions of law raised, therefore, are answered in favour of the defendant/appellants and against the plaintiff/respondent. Resultantly, this appeal is allowed; the judgment and decree passed by the learned courts below is set aside and suit filed by the plaintiff/respondent is ordered to be dismissed, but with no order as to costs. (Vinod K.Sharma) 20.09.2010 Judge rp