IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 06 of 2009 Ramesh Kumar S/o late Sri Bihari Lal Madan R/o 2 / 7, Rest Camp East, Dehradun At present Madan Cloth House, 7, Babuganj, Dehradun. ...…………. Defendant / Appellant Versus 1. Shri Ved Kumar Madan S/o late Shri Bihari Lal Presently R/o 20 / 2, Indra Bawa Marg, Kishanpur, Rajpur Road, Dehradun. 2. Smt. Daman Madan W/o Shri Ved Kumar Presently R/o 20 / 2, Indra Bawa Marg, Kishanpur, Rajpur Road, Dehradun. ...…………. Plaintiff / Respondents Mr. Arvind Vashistha, Advocate for the defendant / appellant. Mr. Alok Singh, Sr. Advocate assisted by Mr. D. Barthwal, Advocate for the plaintiff / respondents. Hon’ble Prafulla C. Pant, J. [ This second appeal is directed against the judgment and decree dated 20.11.2008, passed by the District Judge, Dehradun, in Civil Appeal No. 92 of 2006 and Civil Appeal No. 23 of 2008, arisen out of the Suit No. 915 of 2001, decided by the trial court (Civil Jude I (Sr. Division) Dehradun), on 31.10.2006. 2 2) Heard learned counsel for the parties and perused the relevant papers on record. 3) Brief facts of the case giving rise to this appeal are that the plaintiff Ved Kumar Madan and defendant Ramesh Kumar Madan are real brothers. The plaintiff instituted Suit No. 915 of 2001, for injunction seeking possession of the property in suit, from the defendant. It is pleaded by the plaintiff that he is owner of the property in suit. The defendant filed his written statement denying the allegations in the plaint. It is further stated by the defendant that he is in possession of the property in suit under an agreement dated 12.12.2000. A counter claim is also made by the defendant against the plaintiff for relief of injunction. The trial court vide its judgment and order dated 31.10.2006, passed in Suit No. 915 of 2001, accepted the case of the plaintiff and decreed the suit. It also dismissed the counter claim made by the defendant. The lower appellate court has concurred with the findings recorded by the trial court and dismissed the appeal of the defendant. Hence, this second appeal. 4) Learned counsel for the defendant / appellant drew attention of this Court to the provision contained in Section 53A of the Transfer of Property Act, 1882, and argued that the defendant’s possession cannot be disturbed as in part performance of a contract between the parties, he has taken possession of the property. However, learned counsel for the defendant / appellant conceded that the document dated 12.12.2000, which is 3 said to be an agreement between the parties, was an unregistered document. Apart from this, there is no finding of fact of the courts below that there had been any agreement between the parties as projected by the defendant. Had there been a finding that the plaintiff entered into agreement with the defendant and in the part performance, the defendant was given possession, only in that case the defendant could be given benefit of Section 53A of the Transfer of Property Act, 1882. 5) Having heard learned counsel for the parties and after going through the impugned judgments and orders passed by the courts below, this Court does not find any substantial question of law involved in this appeal, which is liable to be dismissed. 6) The second appeal is dismissed. However, the defendant / appellant is allowed three months time to vacate the house. Also, it is observed that since the relief of possession has been sought under the garb of injunction, which is not a happy practice, it is further directed that the impugned decree would be executed only after the plaintiff / respondents pay the entire court fee payable on the relief of possession. Interim order dated 17.02.2009, passed by this Court, stands automatically vacated. (Stay Application No. 1080 of 2009 also stands dismissed). (Prafulla C. Pant, J.) [ Dt. April 06, 2009. H. Negi