RSA No.897 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.897 of 1986 Date of decision 04 .08.2010. Om Parkash and others ...... Appellants. versus Smt. Sumitra Devi and others. ...... Respondents. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. Present : Ms. Alka Sarin, Advocate for the appellants. Mr. Ashok Jindal, Advocate for respondents. K.C.PURI, J. This is a regular second appeal directed by plaintiff-appellant against the judgment dated 13.12.1985 passed by Shri R.K.Synghal, Additional District Judge, Kapurthala vide which the appeal preferred by the defendant-appellants against the judgment dated 25.3.1985 passed by Shri N.D.Bhatara, Sub Judge Ist Class, Kapurthala decreeing the suit of the plaintiff for possession, stood set aside and the appeal was allowed. Shorn off unnecessary details, the case of the plaintiff as set forth in the plaint is that Des Raj defendant No.1 was the owner in RSA No.897 of 1986 2 possession of the house in dispute and he sold the said house to the plaintiffs-appellants vide registered sale deed dated 13.5.1982 for Rs.35,000/- and received Rs.20,000/- before the Sub Registrar, Kapurthala and delivered constructive possession of the house in dispute to the plaintiff and agreed to deliver its actual possession on 13.10.1982 on receiving the balance sale price from the plaintiffs. The plaintiffs have been approaching defendant No.1 with the balance sale price of Rs.15,000/- and have been requesting him to deliver actual possession of the house in dispute to them, but he had been putting of the plaintiffs on one pretext or the other. In order to harass the plaintiffs, defendant No.1 got a baseless, frivolous and collusive suit filed by his wife defendant No.2 for permanent injunction, who has no right or interest in the property in dispute being residing with the defendant No.1 in the same house. The plaintiffs are, therefore, entitled to get actual possession of the house in dispute on payment of the balance sale price of Rs.15,000/-. On notice defendant No.2-Sumitra Devi contested this suit. She controverted the allegations that defendant No.1 was not the owner of the house in dispute nor he sold the same to the plaintiffs. Rather it is she, who is living separately in her own house. She further alleged that the suit was not properly valued for the purposes of court fee and jurisdiction, the suit was bad for misjoinder of parties and that the suit was not maintainable against her because the plaintiffs and defendant No.1 had nothing to do with the house in dispute. Following issues were framed :- 1. Whether defendant No.1 sold the house to the plaintiffs for RSA No.897 of 1986 3 Rs.35,000/- on 13.5.1982 and received Rs.20,000/- before the Sub Registrar ? 2. Whether defendant No.1 gave constructive possession of the house in dispute to the plaintiffs as alleged ? 3. Whether the plaintiffs have been ready and willing to make payment of the remaining amount of Rs.15,000/- as alleged ? 4. Whether defendant No.1 has willfully refused to receive the remaining amount and to deliver possession of the house to the plaintiffs ? 5. Whether the plaintiffs are entitled to the possession of the house on payment of remaining amount of Rs.15,000/- as alleged ? 6. Whether the suit is not maintainable against defendant No.2 as alleged in the written statement ? 7. Whether the suit is not properly valued for the purpose of Court-fee and jurisdiction ? 8. Whether the suit is bad for non-joinder and mis-joinder of parties ? 9. Whether defendant No.2 is living separately from defendant No.1 in her own house which has no concern with defendant No.1 ? 10. Relief. The parties have led their respective evidence on the aforesaid issues. After appraisal of the evidence, the learned trial Court decided issue Nos.1 to 5 in favour of the plaintiffs and the remaining issues were decided RSA No.897 of 1986 4 against defendant No.2 and the suit of the plaintiffs stood decreed. Feeling dis-satisfied with the judgments dated 25.3.1985, defendant No.2-appellant has preferred the appeal before the learned First Appellate Court. The learned Additional District Judge, Kapurthala vide judgment dated 13.12.1985 set aside the impugned judgment and the suit was dismissed. Feeling dis-satisfied with the judgment dated 13.12.1985, the plaintiffs-appellants have preferred the present regular second appeal. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellants has submitted that trial Court has decreed the suit of the plaintiffs giving sound reasoning. The First Appellate Court has returned a finding that defendant No.2 is not the owner of the suit property. However, the First Appellate Court has returned a finding contrary to the pleading and record that plaintiffs have failed to prove that Des Raj is the owner of house in question. The boundaries of the house has been mentioned in the sale deed executed by Des Raj in favour of plaintiffs. The First Appellate Court has not even read the pleading of the party. Defendant No.2 in para No.1 of the preliminary objection has stated that suit does not lie against defendant No.2 as the plaintiffs as well as defendant No.1 have nothing to do with the house of defendant No.2, which does not form part of house in dispute. The suit of the plaintiffs may be dismissed with costs. So, from the pleading of defendant No.2, it is clear that she has not disputed regarding the ownership of defendant No.1 RSA No.897 of 1986 5 regarding the suit property, rather has pleaded that she is in possession of separate house which is not disputed. The First Appellate Court has observed that documents Ex.PW4/1, PW5/1 and PW7/1 do not prove the ownership of defendant No.2 Des Raj. Defendant No.1 has not contested the suit inasmuch as he did not appear before the trial Court in spite of his service. Defendant No.2 has nowhere pleaded that she is the owner of the suit property. Plaintiffs have pleaded in paragraphs No.2 to 5 that defendant No.1 executed sale deed dated 13.5.1982 for a consideration of Rs.35,000/- and received Rs.15,000/- and the actual possession was to be delivered on 13.10.1982 on payment of Rs.15,000/- to defendant No.1 and defendant No.1 has not received that amount. In reply to para No.2 to 5, the defendant No.2 has simply denied for want of knowledge. So, the contents of para Nos.2 to 5 would be deemed to have been admitted. The plaintiffs in para No.6 of the plaint, have pleaded that in order to delay and harass the plaintiffs, defendant No.1 got a baseless, frivolous and collusive suit filed by defendant No.2 to deprive them from the use of land and in para No.7, it is pleaded that defendant No.2 is the wife of defendant No.1 and is residing with him and has got no right, title and interest in the house in dispute. The defendant in reply to these paras has stated that she is at dagger drawn with defendant No.2 and is living separately from defendant No.1 in her own house, who has no concern or connection with defendant No.1. Sumitra Devi defendant, while appearing as DW-1 has stated that her house and the house in dispute are two separate houses. Surinder Kumar her son resided with her in the house and she has constructed that house with her own funds. She has further stated that she had no concern with the house of Des RSA No.897 of 1986 6 Raj and Des Raj has nothing to do with her house. So, from the testimony of Sumitra Devi, it is clear that she has virtually admitted the ownership of Des Raj in respect of suit property. Defendant Des Raj has not contested the suit. So, the finding of the First Appellate Court to the effect that plaintiffs have failed to prove that Des Raj was the owner, is against the law. A fact admitted by the opposite party need not to be proved. Des Raj admitting himself to be the owner of the house covered by sale deed Ex.P-1 got registered the sale deed. The execution of the said sale deed has not been denied. The judgment and decree of the First Appellate Court on that account is perverse, illegal and is result of misreading and misinterpreting the evidence on the file. Prayer has been made for acceptance of appeal and for setting aside the judgment and decree of the First Appellate Court and for restoration of the judgment and decree passed by the trial Court, by raising the following substantial question of law :- 1. Whether the judgment of the First Appellate Court is perverse, illegal and against the law and is the result of misinterpreting and misreading the evidence on the file. In reply to the above noted submissions, counsel for the respondents has supported the judgment of the First Appellate Court. It is submitted that plaintiff has to prove his own case. There is finding of fact recorded by the First Appellate Court that plaintiff has failed to prove the ownership of Des Raj in respect of disputed house. So, that being a finding of fact cannot be interfered in the second appeal. Consequently, the prayer has been made for dismissal of the appeal. I have heard the learned counsel for the parties and have carefully gone through the records of the case. RSA No.897 of 1986 7 The arguments advanced by the learned counsel for the appellants carry weight and has to be accepted. There is finding of fact recorded by both the Courts below that defendant No.2 is not the owner of house in question. The plaintiffs-appellants have been non-suited on the ground that they failed to prove that Des Raj was the owner of the suit property. In the present case, the First Appellate Court has misread and misinterpreted the pleading and evidence regarding ownership of the disputed house. Defendant No.2 Sumitra Devi in para No.1 of the preliminary objection has stated as under :- “ The suit of the plaintiff does not lie against the defendant No.2 as the plaintiff as well as defendant No.1 has nothing to do with house of defendant No.2, which does not form part of the house in dispute, therefore, the suit of the plaintiffs may be dismissed with costs.” The plaintiffs/appellants in para No.6 of the plaint has pleaded that defendant No.1 got a baseless, frivolous and collusive suit filed by defendant No.2 for permanent injunction. In para No.7, it is pleaded that defendant No.2 is the wife of defendant No.1 and is residing with him and have got no right, title and interest in the house in dispute. In reply to that para, in para No.6 of the written statement, Sumitra Devi has stated that defendant No.1 is dagger drawn with defendant No.2 and defendant No.2 is living separately from respondent No.1 in her house, which has no concern or connection with defendant No.1. The matter became crystal clear by RSA No.897 of 1986 8 going through the testimony of DW-1 Sumitra Devi. Sumitara Devi defendant No.2, while appearing as her own witness, has stated that her house and the house in dispute are two separate houses. Surinder Singh is her son residing with her in her house. She has no concern with the house of Des Raj defendant No.1 and Des Raj has no concern with her house. So, from the reading of pleading mentioned above and statement of Sumitra Devi, it is crystal clear that she has not denied the fact that house in question is owned by Des Raj. Her stand is that she is living in a separate house which is other than the house in dispute. The First Appellate Court by misreading those evidence and pleadings in para No.8 of the judgment, has mentioned that case of defendant No.2 was that she was the owner of the house in dispute and Des Raj has nothing to do with it and this house was not sold by Des Raj to the plaintiffs. A fact admitted need not to be proved. A fact not specifically denied would be deemed to have been admitted. Since the case of contesting defendant is that her house is different from the house in dispute and both the houses are different and as such the findings of the First Appellate Court to the effect that since plaintiff has failed to prove the ownership of vendor Des Raj and as such he is not entitled to any relief. The ownership of Des Raj could be disputed by Des Raj himself or by defendant No.2. Des Raj has not chosen to contest the suit and was proceeded ex-parte. Otherwise also, once he has executed the sale deed, he is estopped from challenging the fact that he is not the owner. The other contesting defendant is his wife Sumitra, who has pleaded that there are two different houses and one is owned by her and the other is owned by Des Raj, while appearing as her own witness, she also RSA No.897 of 1986 9 stated the said fact. So, in these circumstances, the judgment of the First Appellate Court is the result of misreading, misinterpreting the pleading as well as evidence on the file and as such on the face of it is perverse. Consequently, the substantial question of law raised for determination, stands determined in favour of the appellants and against the respondent and consequently, the appeal stands accepted. The judgment and decree of the First Appellate Court stands set aside and the judgment of the trial Court stands restored. Decree sheet be prepared. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 04 , 2010 sv