RSA No. 776 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYAN AT CHANDIGARH RSA No. 776 of 1989 Date of decision:15.11.2011 Parveen Kumar ... Appellant versus Jodha Ram and another ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH, J. Present: Mr.A.S.Bakshi, Advocate, for the appellant. Mr.K.S.Sidhu, Advocate, for the respondents. ... JORA SINGH, J. Parveen Kumar filed this regular second appeal to impugn the judgment dated 16.11.1988 passed by Additional District Judge, Gurdaspur, whereby appeal against the judgment and decree dated 11.3.1987 passed by Additional Senior Sub Judge, Pathankot, in Civil Suit No.438 of 1985 for possession of the shop (khokha) ordered to be decreed with costs, was accepted. Appellant filed main suit for possession of the shop shown with red colour marked `ABCD' in the site plan with boundaries as under:- “North : Dalhousie Road South : Railway Line East : Shop of Chhaju Ram West : Passage and khokha of Girdhari Lal” situated at Dalhousie Road, Pathankot, on the allegation that Hem Raj, respondent No.2, was the owner of the khokha in dispute and the khokha RSA No. 776 of 1989 2 was sold to Parveen Kumar, appellant, vide agreement dated 17.10.1983. After that, Parveen Kumar had rebuilt the khokha in dispute to carry on business. Khokha in dispute was built on the land owned by Improvement Trust, Pathankot. Parveen Kumar is paying rent for the use of khokha in dispute to Improvement Trust, Pathankot. Jodha Ram, respondent No.1, is related to the appellant. Earlier he was working at Jaipur in Rajasthan. In the middle of 1983, he came to Pathankot in search of work and started staying with the appellant being his relative. Jodha Ram failed to find out a suitable place to carry on business, then requested the appellant to permit him to use the khokha in dispute temporarily till he finds alternative place, and the appellant permitted Jodha Ram to keep his tools in the khokha in dispute. Jodha Ram was using the khokha in dispute as a licencee w.e.f. December, 1983. Jodha Ram was requested to vacate the khokha in dispute but he failed to vacate the same. Upon notice, Jodha Ram filed written statement and contested the suit inter alia on the ground that khokha in dispute is part of khokha which is presently in possession of Girdhari Lal and the khokha is towards West of the khokha in dispute. Girdhari Lal had purchased khokha from Hem Raj on 8.8.1977 as per receipt dated 8.8.1977. Girdhari Lal gave the khokha in dispute to the answering respondent in the month of January, 1983. He is in possession of the khokha in dispute as a licencee under Girdhari Lal. From the pleadings of the parties, following issues were framed:- “1. Whether defendant is the licencee in respect of the khokha in dispute under the plaintiffs? OPP RSA No. 776 of 1989 3 2. Whether the plaintiffs have no locus standi to file the present suit? OPD 3. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD 4. Whether plaintiff No.1 purchased the khokha in dispute from plaintiff No.2? OPP 5. Relief.” After evidence of both the parties, trial Court decreed the suit but judgment and decree of trial Court was set aside by the first Appellate Court. I have heard learned counsel for the appellant, respondent and have gone through the evidence on the file. Learned counsel for the appellant argued that the site is of the Improvement Trust and on the site of Improvement Trust, khokha in dispute was kept by Hem Raj. Khokha in dispute was sold to the appellant as per agreement (Ex.P4) dated 17.10.1983. After purchasing old khokha, new khokha was being constructed. Rent is being paid to the Improvement Trust. Receipts are from Ex.P-1 to Ex.P-3. Agreement vide which khokha in dispute was purchased from Hem Raj is Ex.P-4. According to the respondent, khokha in dispute was purchased by Girdhari Lal from Hem Raj but this fact is not correct one. In para 5 of preliminary objection of the amended written statement, allegation of the respondent is that khokha in dispute is part of the khokha which is presently in possession of Girdhari Lal which is towards West of the khokha in dispute. Girdhari Lal purchased the khokha from Hem Raj vide receipt dated 8.8.1977 but as per receipt dated 8.8.1977, khokha in dispute was not purchased because boundaries of RSA No. 776 of 1989 4 the khokha in dispute are not tallying with the boundaries of the khokha purchased vide receipt dated 8.8.1977. Further argued that substantial question of law involved in the present case is whether learned first Appellate Court misread documentary evidence. When the khokha was not purchased as per receipt (Ex.D2) dated 8.8.1977, then evidence on the file was misread by the first Appellate Court while holding that the khokha in dispute was purchased by Girdhari Lal from Hem Raj. Learned counsel for the respondent argued that Hem Raj was the owner of the khokha in dispute and the same was purchased vide receipt (Ex.D2) dated 8.8.1977. After the sale of khokha in dispute, Hem Raj had no right to execute agreement (Ex.P-4) dated 17.10.1983 in favour of Parveen Kumar, appellant. Admittedly, the respondent is in possession of the khokha in dispute and the first Appellate Court rightly observed that khokha in dispute was purchased by Girdhari Lal from Hem Raj vide receipt (Ex.D2) dated 8.8.1977. So, the appellant has no concern with the khokha in dispute. Undisputedly, land on which khokha in dispute was installed is of the Improvement Trust, Pathankot. According to the appellant, khokha in dispute was purchased from Hem Raj as per agreement (Ex.P-4) dated 17.10.1983. Respondent is related to the appellant. Earlier, respondent was carrying on business in Jaipur and came to Pathankot in search of business. When Jodha Ram, respondent, failed to locate any suitable place, then requested the appellant to allow him to keep his tools in the khokha in dispute. Appellant being relation of Jodha Ram had allowed him to keep his tools in the khokha in dispute till he finds suitable place. Jodha Ram is in possession of the khokha in dispute as a licencee, whereas allegation of RSA No. 776 of 1989 5 the respondent is that Hem Raj was the owner of the khokha in dispute and the same was sold vide receipt (Ex.D2) dated 8.8.1977. Khokha in dispute is part of the khokha which is presently in possession of Girdhari Lal which is towards West of the khokha in dispute. Parties are to lead evidence as per pleadings. Evidence led beyond pleadings is to be ignored. The respondent cannot wriggle out from the amended written statement. According to the amended written statement, khokha in dispute is part of the khokha which is presently in possession of Girdhari Lal which is towards West of the khokha in dispute, purchased by Girdhari Lal from Hem Raj vide receipt (Ex.D2) dated 8.8.1977. So, according to the amended written statement, khokha in dispute is different than the khokha in possession of Girdhari Lal. Ex.D2 is the receipt dated 8.8.1977 vide which according to the respondent, khokha in dispute was purchased by Girdhari Lal from Hem Raj. According to the plaint and site plan (Ex.P5), Dalhousie road is on the Northern side, Railway line is on the South side, shop of Chhaju Ram is on the Eastern side and passage and khokha of Girdhari Lal is on the Western side of the kohkha in dispute. That means, khokha in possession of Girdhari Lal is on the Western side of the khokha in dispute. Ex.D2 is the receipt dated 8.8.1977 vide which, Girdhari Lal purchased khokha from Hem Raj but according to receipt (Ex.D2) dated 8.8.1977, shop of Talwan is on the Eastern side, shop of Prem is on the Western side, road is on the Northern side whereas railway line is on the Southern side from the khokha. That means, khokha purchased as per receipt (Ex.D2) dated 8.8.1977 is different than the khokha in dispute. Ex.P-1 to Ex.P-3 are the receipts issued by the Improvement RSA No. 776 of 1989 6 Trust, Pathankot, showing this fact that rent was deposited by Hem Raj through Parveen Kumar, appellant. Rent Clerk of Improvement Trust appeared as PW2 and stated that Ex.P-1 to Ex.P-3 were executed by the Improvement Trust in favour of Hem Raj. Payment was deposited by Parveen Kumar on behalf of Hem Raj. Hem Raj also appeared as PW3 and stated that as per agreement (Ex.P4), khokha in dispute was sold to Parveen Kumar. Hem Raj stated that there is a passage on the Western side of the khokha and beyond the passage, site was sold to Girdhari Lal. That means, khokha in dispute was sold to the appellant as per agreement (Ex.P4), whereas the khokha beyond the passage on the Western side of the khokha in dispute, was sold to Girdhari Lal. Khokha in dispute is different than the khokha sold as per Ex.D2. That is why, boundaries of the khokha purchased as per Ex.D2 are not tallying with the boundaries of the khokha shown in the site plan (Ex.P5) and in the head note of the plaint. First Appellate Court set aside the judgment and decree of trial Court on the ground that as per receipt (Ex.D2) dated 8.8.1977 executed by Hem Raj in favour of Girdhari Lal, khokha in dispute was sold and Hem Raj when appeared as PW3 then admitted that the khokha in dispute was sold to Girdhari Lal and there is no escape from the conclusion that Hem Raj sold the khokha in dispute to Girdhari Lal vide receipt (Ex.D2) dated 8.8.1977 but approach of the first Appellate Court is not correct one because boundaries of the khokha sold vide receipt (Ex.D2) are different than the boundaries of the khokha sold to Parveen Kumar vide agreement (Ex.P4). As discussed earlier, the site underneath the khokha is owned by Improvement Trust, Pathankot. No evidence on the file except receipts (Ex.P-1 to Ex.P-3) dated 20.10.1983, RSA No. 776 of 1989 7 10.12.1984 and 5.6.1985, respectively, regarding payment to the Improvement Trust. Improvement Trust is not the party. In case, appellant or the respondent is not paying the rent to the Improvement Trust, then Improvement Trust is at liberty to remove the khokha in dispute because dispute is only regarding the wooden khokha, which is in possession of the respondent but the same was purchased by the appellant as per agreement (Ex.P4) dated 17.10.1983. All this shows that the first Appellate Court misread the documentary evidence on the file. For the reasons recorded above, appeal is accepted. Judgment and decree 16.11.1988 passed by the first Appellate Court is set aside and of the trial Court is restored. Parties are to bear their own costs. Decree sheet be prepared. 15.11.2011 ( JORA SINGH ) pk JUDGE