IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL SECOND APPEAL No. 83 of 1989 RAM KUMAR V/S SUKHA RAM Mr. RR NAGORI, for the appellant / petitioner Mr. RK SONI for Mr. IR CHOUDHARY, for the respondent Date of Order : 11.12.2006 HON'BLE SHRI N P GUPTA,J. JUDGMENT -------- This appeal has been filed by the defendant, against the judgments and decrees of the two learned courts below, decreeing the plaintiff's suit for perpetual injunction, holding the plaintiff to be entitled to possession of the land marked by “E F H I” in Ex.-4, and directing the removal of the construction existing on the said land, and also issuing perpetual injunction, restraining the defendants from raising construction, or interfering on, the land “E F H I”. The facts of the case are, that on 11.2.75 the plaintiff filed the present suit, alleging interalia that in Godaro Ka Bas, Beethan, the plaintiff and his son are in possession of a house and behind that house 2 ½ ft. land is also of the ownership and possession of the plaintiff. The plaintiff produced a site plan, wherein house has been shown by figure “B E F G”, and Chabutri in front thereof by “A B C D”, and the land behind the house is shown by “E F H I”. It was alleged, that the property was purchased from Parasmal Mahajan on Jeth Sud 11 Samvat 2021, and took possession that day itself, and registration was affected on 10.2.75. The house is said to be a Pucka two storied house, and on the rear side, land is said to exist, on which there is wall “E I”, and on “F H” foundations are filled, and there are four windows in the rear side, being “J K L M” with Chhajja, and above the windows are ventilators “N O P Q”. It was also alleged that in the rear wall there is Aala marked “V”. It was then alleged that the plaintiff had gone to graze the cattle at Dist. Sagar in M.P., and in his absence, on 15.1.75, with an intention to grab the land “E F H I”, the defendant constructed a new wall “S R” on the plaintiff's wall, and placed stone slabs to cover it at the Seal level of the window “J”, and also raised wall “U T”, and constructed Chabutari unauthorisedly. Loss of right of privacy and loss of right of light and air was also alleged. Interalia with these pleading, that decree was claimed, for removal of the wall and roofing slabs, and Chabutari, and for perpetual injunction restraining the defendants from raising any construction on the land “E F H I” belonging to the plaintiff. The defendant filed a written statement on 23.8.75 2 and contested the suit. It was admitted that there is a house of possession of plaintiff, and his son Baksha Ram. It was denied that on the rear side, land belongs to or is in possession, of the plaintiff, rather the land “E F H I” was claimed by the defendant to be his own, having been purchased from Gheesa Dholi on 5.2.74, by registered sale deed. It was pleaded that this part of the land did not belong to Parasmal, therefore, even if Parasmal has executed any sale deed with respect to this land, that is only collusive and without authority. It was contended that Parasmal could not deliver possession of the land to the plaintiff, nor it was so delivered, rather in order to grab the land the plaintiff has introduced Parasmal, otherwise there was no occasion for getting the document registered after 11 years. Existence of any Pucka wall “E I” of the plaintiff was denied, likewise existence of filled foundation “F H” was also denied. Regarding window and ventilator, it was contended that some 5-6 years ago they were erected anew, in absence of Gheesa, and on objection being raised by Gheesa, the plaintiff admitted his guilt and agreed, that whenever Gheesa raises construction on his land, he would close them. It was also pleaded that when the defendant purchased the land Gheesa had made the parties to meet, and the plaintiff also admitted, that whenever defendant raises construction, the plaintiff will close window and ventilator. Existence of Aaliya earlier marked “V” was admitted, and it was submitted, that apart 3 from that there are four more Aaliyas existing in the wall, which are closed towards the side of the plaintiff, and are open towards the defendant, and were constructed for Gheesa the predecessor of the defendant. Then it was pleaded, that the construction was raised by the defendant on 1.1.75, and in presence of the plaintiff himself, at which time the plaintiff did not raise any objection, and subsequently at the instance of other persons the false suit has been filed. It was pleaded, that the closure of window and ventilator would not diminish the light and air of the plaintiff, because towards the other side there are two windows and four ventilator, likewise light and air can be received from south also, on which side there is a public way. It was pleaded that the land at “H F U T” is the part of the Chabutari of the defendant, while “I E R S” is the part of the defendant's Saal, and the land in between is Chowk. It was denied that the defendant has encroached upon any land. It was contended that the plaintiff has no right to keep the window and ventilator opening on the defendant's land, apart from the fact, that that violates the defendant's right of privacy. In additional pleas also the plea of construction being raised in the presence of the plaintiff without any objection, was reiterated. Similarly the claim of the defendant on the land in question was also reiterated. Then, it was pleaded that the land shown to be of Parasmal, Chuna, Gheesa, defendant, and that of the plaintiff, earlier belonged to Gheesa, Chuna, 4 and Lachhiya jointly, who affected mutual partition, and the defendant purchased half portion of the land, falling to the share of Gheesa. Thus, the title over the land was sought to be established. The learned trial court framed seven issues, and the crucial issue was issue no.1, being as to whether the land marked “E F H I” in the site plan is of ownership and possession of the plaintiff. Then, issue no. 5 was about acquiescence and estoppel. The other issues, being not of much significance for the present controversy, need not be gone into. The parties led evidence, oral as well as documentary. The plaintiff produced Ex.-1 being a copy of Bahi dated Jeth Sud 11, Samvat 2021, purporting to be sale deed of the property including the land in question, the registered sale deed dt. 10.2.75 was produced as Ex.-2, then an agreement dt. 10.2.75 between Gheesa and plaintiff was produced as Ex.-3, then Ex.-4 is the site plan; while the defendant produced copy of his registered sale deed dated 5.2.74 as Ex.A-1. The learned trial court, deciding issue no.1 considered the evidence of P.W.1 about the land in question being included in the sale, and he having signed as attesting witness on Ex.-1, and about Parasmal having delivered possession to the plaintiff. Then, evidence of P.W.2 Parasmal was considered about his having 5 delivered possession at the time of sale and proved his signatures on Ex.1, and then executed sale deed Ex.-2. He also deposed about existence of two Aaliyas which were constructed by himself, and that after sale Sukh Ram had only constructed two rooms on the “Saal” having four windows on the land. It may be noticed that he has deposed that he does not orally remember length and breadth of the land purchased by him from Lachha of which Kacha document was got executed wherein measurements of the land are given. Then, evidence of P.W.3 Hema Ram was considered who deposed existence of two Saals and existence of four windows and has also deposed about being present at the time of sale. This witness also admitted to be father in law of plaintiff’s son, and also deposed that at the time of purchase of land no documentation was effected. Then, evidence of P.W.4 Chaturbhuj was considered who is scribe of the sale deed Ex.-2 and also of Ex.-3, and noticed that he has deposed that Ex.-3 was scribed at the behest of Gheesa Dholi, whereon Gheesa appended his thumb mark in his presence, and that the thumb mark of Gheesa was verified by Parasmal and the document was attested by Baksha Ram and Shishpal singh. Then, evidence of P.W.6 plaintiff was considered, who has deposed to have purchased the house in Samvat 2021, at which time two Saals were in existence, and the land in the rear side was left open, and that on asking Gheesa Dholi gave out to have not sold this land to the plaintiff, and in that regard Gheesa executed agreement 6 Ex.-3, he has also deposed that Gheesa has died. Then, the evidence led on the side of the defence was also recapitulated, and it was held that the witness Ishar Singh, Parasmal and Hema Ram have deposed about existence of open land in question, and to be in possession of the plaintiff, which evidence is corroborated by Ex.-1, and the defendant also claims to have purchased the property from Gheesa who has given affidavit Ex.-3, deposing the land to be of the plaintiff. Then, admittedly Aaliya exists overlooking the disputed land; which all show that the land appears to be of the plaintiff, otherwise there was no occasion for keeping Aaliyas. Likewise, admittedly the ventilators and windows are there in the upper storey, which also corroborates the plaintiff’s version, and it cannot be said, that Aaliyas were being used by Gheesu Dholi. Thus, it was concluded that from the plaintiff’s evidence and the documents Ex. 1 to 3, the land is established to be of the plaintiff. Then, deciding issue no. 5, the evidence was appreciated, and it was found, that rather it appears, that at that time the plaintiff was not in the town, and thus the issue was decided against the appellant. In the result the suit was decreed as above. In appeal the learned lower Appellate Court decided issues no. 1, 2 and 3 together. The learned lower Appellate Court considered, that the plaintiff has deposed to have purchased the property in Samvat 2021, at which 7 time two Saals existed, and the land in question was also purchased. Then, ventilator and windows were kept in the upper storey apartments, and also deposed about defendant having encroached upon land in question in his absence when he was in district Sagar, and on learning about this he approached Gheesa, who gave out to have not sold the land, and gave in writing Ex.-3. Then it was considered, that the evidence of this witness is corroborated by P.W.3 Hema Ram, who has deposed that when plaintiff purchased the property from Parasmal two Saals were there, and the land in question was open. Then, the plaintiff constructed upper storey. It was also deposed by P.W.3 that the property was purchased in Samvat 2021, at which time he was present, and at the time of purchase it was in possession of the plaintiff, and that the defendant purchased from Gheesa, and constructed the house, at that time the land was encroached by the defendant. Then, the evidence of P.W. 2 Parasmal was considered, to have sold the property to the plaintiff in Samvat 2021, and delivered possession including the land in question. Then, he has deposed Ex.-1 to be his holograph, and bearing his signatures C to D, and a separate sale deed was executed and registered being Ex.- 2, on which his signatures have been proved by him, and was attested by Mangla and Kishna Ram who signed in his presence. Then, the evidence of P.W.4 has been considered who has deposed to be scribe of Ex.-2 and Ex.-3, and deposed Ex.-3 to be scribed at the behest of Gheesa, 8 whereon there is thumb mark of Gheesa, appended in his presence, and was attested by witness Baksha and Shish Pal Singh. P.W.4 Yakoob (sic P.W.5) is the person who prepared the map. Then, the evidence of P.W.7 Budha Ram has been considered who is deposed to have informed the plaintiff at District Sagar. Then, the evidence led on the side of the defence was recapitulated, and then in para-10 it was concluded, that copy of the Bahi entry Ex.-1, Sale deed Ex.-2, and the agreement Ex.-3, show the existence of 2 ½ ft. land between the house of the parties, and this land to be included in the plaintiff's land. Likewise Gheesa and Parasmal have also shown it to be the land of the plaintiff's portion, and to have been left for light and air. Thus, the above oral evidence is clearly corroborated by documentary evidence, while there is no rebuttal on the side of the defendant, as the defendant has led only oral evidence. With this it has been concluded, that this 2 ½ ft. land formed part of the land of Lichhman, and was sold by Lichhman to Parasmal, and Parasmal sold it to the plaintiff. Thus, this land is established to be of the plaintiff, whereas the defendant has failed to establish having any right over this land. The learned lower Appellate Court has also found, that the defendant has taken possession of this land, and raised construction, for which he was not entitled. Both these issues were found in favour of the plaintiff, and the plaintiff was held to be entitled to mandatory injunction and possession also. Thus, 9 the finding of the learned trial court was affirmed. The findings on other issues were also affirmed, and the appeal has been dismissed. This appeal was admitted by framing following substantial question of law:- “Whether the Court below misread the evidence on record, and considered the inadmissible evidence?” Arguing the appeal, learned counsel for the appellant took me through the entire record, including pleading, documents and the statements, and submitted, that Parasmal had admitted, that he purchased the land from Lachhman, and in that document measurements of land was given, but then, that document has not been produced. Thus, the chain of documents has not been produced, whereby the plaintiff may be shown to have acquired a valid title. Learned counsel also referred to the statement of Parasmal P.W.2, who has deposed in cross examination that in Ex.-1 measurements are not mentioned because at that time his Bahi was in Borunda, while Ex.-1 is the plaintiff’s Bahi, and measurements are written in witness’ Bahi. He has also admitted that when the sale was affected, sale deed was scribed in the witness’ Bahi, and was scribed in the plaintiff’s Bahi after two months or 4 to 6 months. Thus, even according to this witness Ex.-1 is not the first 10 document of alleged transaction, but is a subsequent description, and the first document has not seen the light of the day. Then, it was submitted that Ex.-1, clearly purports to be a complete alienation of immovable property worth more than Rs. 100/-, and that being not registered, is not admissible in evidence. Then, it was also submitted, that the sale deed Ex.-2 is of a date, just a day before filing of the suit. As against which, the defendant had purchased the land way back on 5.2.74, by registered sale deed, and once the land was purchased by the defendant, even if it is shown to have been sold to the plaintiff vide Ex.-2, unless the plaintiff is able to show, that his seller had the title in the land, mere recital in that sale deed, is at best, a self serving admission, which is not admissible in evidence against the appellant. Then, regarding Ex.-3 it was submitted, that the learned courts below have proceeded with the assumption of proof of Ex.-3, while there is absolutely no evidence on record to prove Ex.-3, inasmuch as the scribe of this document being P.W.4 Chaturbhuj has simply deposed the document to have been scribed by him, and regarding thumb mark of Gheesa, he has not been able to identify the person putting thumb mark of Gheesa, and relied upon the attestation of thumb mark of Parasmal. As against which Parasmal has not deposed anything about this document, significantly notwithstanding the fact that the two documents Ex.-2 and Ex.3 are of the same date. Then, none of the attesting witness of Ex.-2 has 11 been produced, and thus, there is absolutely no evidence to prove Ex.-3. It was also submitted that even according to plaintiff, when the defendant encroached upon the land he approached Gheesa, and Gheesa gave out to have not sold the land, and executed Ex.-3. In this background again since two documents Ex.2 and 3 are of the same date, obviously there was no occasion for Gheesa to be available there on the date of execution of Ex.-2, which was executed by Parasmal in favour of the plaintiff. Then it was also submitted that in the plaint also there is no reference about this document Ex.-3, nor there is even any pleading about any agreement having been executed by Gheesa in favour of plaintiff, or even about any clarification having been made by Gheesa. Notwithstanding the fact, that P.W.4 the scribe of this document Ex.-3 has purported to depose the identification of thumb mark of Gheesha on Ex.3 to have been made by Parasmal. It was then submitted that apart from the fact that document Ex.-3 has not been proved, in any case in absence of the appellant being party to the document it is not admissible in evidence against the appellant. It was also submitted that significantly a look at the statement of P.W.6 the plaintiff shows, that he does not at all talk about Ex.-1 or even Ex.-2 and rather only talks about Gheesa having given to him in writing Ex. 3. Then, it was submitted that a look at the statement of P.W.1, who is the attesting witness of Ex.-1, does show, that he had clearly deposed the property to have been 12 purchased by the plaintiff in Samvat 2020, even in the plaint the property is alleged to have been purchased in Samvat 2020, which figure has been subsequently interpolated to 2021, inasmuch as the copy of the plaint, as served on the defendant, clearly mentioned the property to have been purchased in Samvat 2020, and P.W.1 also deposed that no Aaliya existed. Likewise this witness also deposed that at the time of sale Bhura Ram Sarpanch had come, and the property conveyed was measured, and then possession was delivered, whereas all other witnesses of the plaintiff depose that no such measurement was taken. Then, P.W.3 Hema Ram has been produced by the plaintiff, who purports to be an attesting witness of Ex.-1, but then, while in witness box he has not at all testified the document Ex.-1, and also deposed, that at the time of sale no documentation was effected, nor any measurement was taken. It was also submitted that the agreement Ex.-3 has been produced by the plaintiff at much latter stage of the litigation. It was then submitted that there is absolutely no evidence to establish, that this 2½ ft. land formed part of the land of Lichhman, and was sold by Lichhman to Parasmal, and Parasmal sold it to the plaintiff, so as to conclude that this land is established to be of the plaintiff, and the finding of the learned lower appellate court is outcome of misreading, or in any case, is based on no evidence. 13 Thus, it was submitted, that since the finding of the learned lower Appellate Court, is primarily based on the documentary evidence Ex.1, 2 and 3, allegedly corroborated by oral evidence, while the document Ex.-1 being unregistered sale deed, and Ex.-3 having not been proved in accordance with law, and in any case not being admissible in evidence against the appellant, and the document Ex.-2 being of the date subsequent to the defendant's sale deed Ex.A-1, the finding is clearly vitiated, as comprehended by the substantial question of law framed. It was then submitted, that a look at Ex.A-1 shows, that therein the property purchased by the appellant has been described by boundaries, and therein the eastern boundary has been shown to be the plaintiff's house, and not any open land, lying in between the property sold, and the plaintiff's house. Thus by that sale deed, the defendant purchased property upto the house of the plaintiff, and therefore, if subsequently in January 1975, a day before filing of the suit, the plaintiff happens to have executed sale deed with respect to portion of the property purchased by the defendant, then until and unless the plaintiff proves, that his seller had the right to sell that property, or in any case had better title than the defendant, the sale deed Ex.-2, by itself, would not be admissible in evidence against the appellant, to recognise the title of the plaintiff over the land, on the face of Ex.A-1. Thus, the findings of learned courts below were 14 sought to be assailed, and it was prayed, that the suit is liable to be dismissed. On the other hand, learned counsel for the respondent submitted, that it is not in dispute, that the land was purchased by the plaintiff by a contract of sale, and that contract is by Ex.-1. Then, Ex.-2 is registered document. A distinction was sought to be made between the transaction of sale/contract of sale, and the execution of the document, purporting to be sale deed, and its registration, and it was submitted, that the contract of transaction of sale is by itself a definite event, and registration is only of bunch of papers, purporting to evidence that transaction, and therefore, Ex.-1 is clearly admissible in evidence, to show transaction of sale, which was perfected by registration of Ex.-2. It was submitted, that in view of the provisions of Section 49 of the Registration Act, may be that Ex.-1 cannot be admitted in evidence as sale deed, but then that does show, that transaction of sale did take place in 1961, wherein the land in question was also conveyed, and by the registration of Ex.-2, the transaction entered into in 1961 was perfected. Learned counsel read to me the provisions of Section 47 of the Registration Act, and submitted, that this provision is required to be interpreted in the manner, so as to relate back, not only to the date of the document, which has been registered, but is required to relate back 15 to the date of transaction, when it was initially entered into, inasmuch as had the registration been not required, Ex.-1 would have been valid, then by virtue of Section 47 it gets validated, and therefore, it will not be from the date of registration of Ex.-2. Replying the arguments of the learned counsel for the appellant, it was submitted, that even oral evidence of the sale is admissible to prove the fact of transaction having taken place, even though it may not prove valid sale, and that to corroborate transaction of sale, there may be more than one documents, and therefore, even if it were to be assumed, as deposed by Parasmal that there was some more previous document will not render inadmissible the subsequent document alone. It was contended that it is nowhere the case of the defendant that Ex.-1 is forged one, but it is only pleaded to be collusive, and even there is no cross-examination about the document to have not been executed, or to be a subsequent creation. It was then submitted, in the alternative, that even if Ex.-1 is not found to be admissible in evidence, still its