R.S.A. No.1843 of 1986 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1843 of 1986 (O&M) Date of decision: 19.02.2010 Kartar Singh ....Appellant Vs. Santa Singh (dead) through LRs. & Anr. ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. G.S.Jaswal, Advocate, for the appellant. Mr. K.S. Sidhu, Sr. Advocate, with Mr. G.S. Sidhu, Advocate, and Mr. G.S. Beniwal, Advocate, for the respondents. VINOD K. SHARMA, J. (ORAL) This order shall dispose of RSA No.1843 of 1986 and Cross objection No.21-C of 1987. The plaintiff/appellant filed a suit for permanent injunction restraining the defendants from interfering, in any manner, in the peaceful possession of the plaintiff over the land measuring 45 Kanals bearing Rect & Killa Nos. 1/3//14, 3/1 (SW), 10/1, 4/5, 13//6/2. 7, 10/24 situated in the revenue estate of village Majarian Patti Kasauli, Tehsil Kharar, District Ropar. The case set up by the plaintiff/appellant was that he was in possession of the suit land measuring 45 kanals on the basis of agreement dated 6.10.1981, situated in the revenue estate of village Majrian Patti. He prayed for injunction against the defendants Santa R.S.A. No.1843 of 1986 -2- Singh and Naurata Singh who claimed themselves to be the vendees of the suit land. Pleaded case of the plaintiff was that owner had entered into oral agreement with him and had executed a written agreement dated 6.10.1987 under which he paid Rs.5000/- (Rupees five thousand only) to the vendor as earnest money. Plaintiff claimed himself to be the owner of the suit land partly on the oral and partly on the written agreement. It was the case of the plaintiff that defendants Santa Singh and Naurata Singh sons of Uttam Singh claimed to have purchased the suit land from Raja Ram and others and they wanted to dispossess the plaintiff/appellant forcibly. The suit was contested by the defendants by filing a joint written statement, wherein the possession of the plaintiff was denied and they claimed to be in possession as vendees from the owner vide registered sale deed dated 9.12.1981. It was the case of the defendant/respondents that the suit was bad for misjoinder of necessary parties as owners were not joined as defendants. The case of the defendants was that the plaintiff had filed a suit against the defendants and others which was dismissed on 3.1.1984 and another suit was pending before the court. It was also pleaded case of the defendants that the court has no jurisdiction under section 13 of the Punjab Village Common Lands (Regulation) Act as the land was shamlat land. It was also the case of the defendant/respondents that as the plaintiff was not in possession of the suit land he was not entitled to injunction on the basis of agreement to purchase, as mere agreement did not create any interest in the property to claim injunction against the true owner. Defendants claimed themselves to be true owners of the property. R.S.A. No.1843 of 1986 -3- In the replication filed averments made in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties, learned trial court framed the following issues: - “1. Whether the plaintiff is in possession of the suit land? OPP 2. Whether the suit has been properly valued for purposes of court fee and jurisdiction? OPP 3. Whether the plaintiff is entitled to the injunction prayed for? OPP 4. Relief. 2-A Whether the jurisdiction of civil court is barred under section 13 of the Punjab Village Common Land (Regulation) Act, 1961, as alleged in preliminary objection No.5, of the written statement to the amended plaint? OPD 2-B Whether the present suit is barred as alleged in preliminary objection Nos.2 & 3? OPD 2-C Whether the suit is bad for none joinder of the necessary parties? OPD 3-A Whether the defendant is entitled to the special costs as alleged?OPD 3-B Whether the description of the property is incorrect, if so its effect? OPD Learned trial court on appreciation of evidence and by taking the case set up by the plaintiff as it is, came to the conclusion that the mere agreement did not confer title in favour of the plaintiff and plaintiff was not found to be in possession, as the possession was claimed on the basis of title. Plaintiff was also held not entitled to grant of injunction. In view of the findings recorded on issue No.1, additional issues framed were also decided against the defendants. Suit was R.S.A. No.1843 of 1986 -4- accordingly dismissed. In appeal learned lower appellate court reversed the findings on issue No.1 and held the plaintiff/appellant to be in possession of the property in dispute. In spite of holding, that the plaintiff/appellant was in possession of the property, the learned lower appellate Court dismissed the appeal, in view of the fact that the defendant/respondents had better title than the plaintiff/appellant, as no decree for specific performance had been passed in his favour. The learned lower appellate Court, therefore, held that it was settled principle of law, that the plaintiff, who does not have a better title than the defendants, who were vendees, could not be granted a decree for permanent injunction. However, it was observed by the learned lower appellate Court, that the result of the suit filed by the plaintiff/appellant for specific performance cannot be pre- supposed, and, in case, the plaintiff/appellant succeeds in the suit then the vendors and the vendees shall be under obligation to execute the sale deed in his favour. Consequently, the appeal was dismissed. Learned counsel for the appellant contends that the appeal raises the following substantial questions of law: - “1. Whether the judgment and decree passed by the learned Courts below is perverse in not protecting the possession of the plaintiff/appellant, which was based on agreement to sell and, therefore, was illegal? 2. Whether in view of the observations made by the learned lower appellate Court while dismissing the appeal, the subsequent decree in favour of the appellant would result in reversal of the decree R.S.A. No.1843 of 1986 -5- passed by the learned lower appellate Court?” During the pendency of this appeal, the plaintiff/appellant filed civil miscellaneous application No.6327-C of 2008 under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for additional evidence, to place on record the judgment and decree passed in civil suit filed by the plaintiff/appellant for specific performance of the agreement to sell as also the order passed by this Court in RSA No. 2916 of 1988. The documents filed along with the application moved under Order 41 Rule 27 of the Code of Civil Procedure, were taken on record, subject to all just exceptions. Learned counsel for the appellant has pressed the application and prays that the additional evidence be allowed, as the judgment and decree passed in civil suit of the plaintiff/appellant would have direct bearing on this suit, and the evidence sought to be led by way of additional evidence, would be necessary for this Court to pass final judgment in this case. The contentions are accepted. Accordingly, this application is allowed and the judgment of the learned Additional District Judge, Ropar, is taken on record as Ex.A-3 and the judgment of this Court in RSA No.2916 of 1988 is taken on record as Ex.A-4. Mr. G.S. Jaswal, learned counsel, appearing on behalf of the appellant, contends that the judgments Ex. A-3 and A-4 prove beyond doubt that the appellant is owner in possession of the land measuring 14 kanals and 16 marlas, and has a better title qua 14 kanals and 16 marlas of the land, than the defendant/respondents. R.S.A. No.1843 of 1986 -6- The contention of the learned counsel for the appellant, therefore, is that the judgment and decree passed by the learned Courts below qua 14 kanals and 16 marlas of land deserves to be reversed. Learned counsel for the appellant prays that in view of the fact that now the appellant has better title, and was found to be in possession of the land, he was entitled to injunction with respect to this part of the land, which the defendant/respondents are under obligation to transfer in his favour. The sale deed also stands executed in pursuance to the decree passed by the learned Courts below. Mr. K.S. Sidhu, learned senior counsel, appearing on behalf of the respondents, does not dispute this proposition of law and admits that in pursuance to the judgment and decree Ex. A-3 and Ex. A-4, the plaintiff/appellant does have a better title than the defendant/respondents qua 14 kanals and 16 marlas of land, qua which the judgment and decree stands passed and has attained finality. He also does not dispute that the plaintiff/appellant is in possession of land measuring 14 kanals and 16 marlas. The substantial questions of law, therefore, are answered in favour of the appellant and the appeal is partly allowed. The decree for permanent injunction is passed in favour of the plaintiff/appellant and against the defendant/respondent qua 14 kanals 16 marlas of land only, whereas his suit qua rest of the land is dismissed. Appeal partly allowed, but with no order as to costs. (Vinod K. Sharma) Judge February 19, 2010 rp/R.S.