REGULAR SECOND APPEAL No.3692 OF 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3692 of 2010 DATE OF DECISION: FEBRUARY 4, 2011 Roshan Lal .... Appellant Versus Balwan Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. S. S. Momi, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) Plaintiff Roshan Lal having lost in both the courts below has filed the instant second appeal. Plaintiff-appellant filed suit against Kali Ram defendant NO.1 (since deceased and represented by respondents No.1 and 2 as his legal representatives) and against respondents No.3 and 4 as defendants No.2 and 3. The plaintiff alleged that the disputed bara measuring 8 marlas comprised of khasra No.699 was allotted to plaintiff's grand father Ram Kala during consolidation of holding in the year 1951-52. After death of Ram Kala, plaintiff's father was owner in possession of the suit property and thereafter plaintiff became owner in possession thereof. Plaintiff has been tethering his cattle in the suit property and storing dung cakes, fodder and other domestic articles. However, defendants threatened to take forcible possession of the suit property. Accordingly, plaintiff sought permanent injunction restraining the defendants from dispossessing him from the suit property and from interfering REGULAR SECOND APPEAL No.3692 OF 2010 -2- in his possession thereon. Plaintiff amended the plaint to plead that on 25.08.2007 i.e. during pendency of the suit, defendants took forcible possession of the suit property. Consequently, the plaintiff also claimed decree for mandatory injunction directing the defendants to restore possession of the suit property to the plaintiff. Defendants No.1 and 2 contested the suit, whereas defendant No.3 was proceeded ex parte. The defendants while admitting that the suit land was allotted to Ram Kala, inter alia pleaded that after his death, the suit property was inherited by his three sons Narata Ram, Ram Saroop and Natha Ram (defendant No.3). Narata Ram (plaintiff's father) and Ram Saroop sold their 2/3rd share of the suit land to defendants No.1 and 2 and their brothers vide agreement to sell dated 27.05.1980 for Rs.5,000/- and delivered possession to them. The vendees were already in possession of the suit land since during the lifetime of Ram Kala. They have constructed room and verandah for tethering cattle and storing fodder etc. in the suit property. Their possession is peaceful and uninterrupted. Plaintiff has no right, title or interest in the suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Kurukshetra vide judgment and decree dated 16.11.2009 dismissed the plaintiff's suit. First appeal preferred by plaintiff has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 31.05.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the appellant and perused the case file. REGULAR SECOND APPEAL No.3692 OF 2010 -3- Plaintiff has miserably failed to prove that he was ever in possession of the suit land. Consequently, suit for permanent injunction filed by him was not maintainable. Plaintiff's plea that he has been dispossessed from the suit land during the pendency of the suit is also, therefore, not tenable and consequently, plaintiff is not also entitled to relief of mandatory injunction. The plaintiff stated that his grand father had four sons and one daughter. However, in the plaint, the plaintiff alleged that only his father became owner in possession of the suit property after the death of Ram Kala (plaintiff's grandfather). Obviously all the four sons and a daughter of Ram Kala equally inherited the suit property from Ram Kala. The plaintiff also admitted that his uncle Natha Ram defendant No.3 is also in possession of some portion of the suit property. The plaintiff failed to disclose the extent or area of the suit property, which is in possession of defendant No.3. The plaintiff also admitted that defendant No.3 has share in the suit property. It is thus manifest that the plaintiff came to the court with false plea. The plaintiff also admitted that defendants No.1 and 2 are having electricity connection in their names in the suit property. Ram Phal DW-3 official of the Power Utility stated from summoned record that defendant No.1 applied for said electricity connection on 29.01.1988 and deposited security for the same and he had submitted agreement to sell along with application for electricity connection. The said agreement has been executed by Ram Saroop and plaintiff's father Narata in favour of defendants No.1 and 2 and their brothers. The said connection was released on 02.03.1988. The instant suit was filed on 15.01.2004. It is thus manifest that 16 years prior to the filing of the suit, defendants No.1 and 2 had even obtained electricity connection in their name in the suit property being in possession thereof. The plaintiff's claim in the REGULAR SECOND APPEAL No.3692 OF 2010 -4- suit filed in the year 2004 that he was still in possession of the suit property is thus patently false. Ram Chander PW-2 stated in cross-examination that suit land is 5 marlas only. The plaintiff has alleged that the suit land is 8 marlas. It is thus manifest that the testimony of Ram Chander PW-2 is completely unreliable and his veracity has been impeached in cross-examination. He even failed to tell dimensions of the suit plot. He also admitted that defendant No.3 has constructed his house in the suit property as per his share. It is thus manifest that defendant No.3 also has share in the suit property as admitted by the plaintiff himself and also by his witness Ram Chander PW-2, but inspite thereof, the plaintiff claimed himself to be exclusive owner in possession of the suit land. On the other hand, plaintiff and his witness admitted that defendant No.3 is in possession of his share and has constructed his house there. Inspite of this admitted position, the plaintiff had the guts to plead and depose that he is exclusive owner in possession of the suit land. Ram Chander PW-2 also admitted that Ram Kala had four sons and a daughter. The plaintiff concealed this fact in the plaint and also failed to plead as to how he or his father became exclusive owner of the suit property. The plaintiff has thus not come to the court with clean hands. On the other hand, defendants have proved agreement dated 27.05.1980 Exhibit D-2 executed by plaintiff's father Narata Ram and uncle Ram Saroop regarding 2/3rd share in the suit land. By this agreement, they agreed to sell the same to defendants No.1 and 2 and their brothers and received the entire consideration and delivered possession to the plaintiffs. Pursuant to the said agreement, defendants No.1 and 2 and their brothers came in possession of 2/3rd share of the suit property and are in possession thereof REGULAR SECOND APPEAL No.3692 OF 2010 -5- since the year 1980. This conclusion is strengthened by the electricity connection obtained by them in the suit land in the year 1988. Said agreement was also annexed with application for obtaining electricity connection by defendant No.1. Learned counsel for the appellant contended that agreement could not transfer title in the suit property to defendants No1 and 2. The contention, although apparently very attractive, cannot be accepted. The plaintiff has not filed suit for possession of the suit property on the basis of title. The plaintiff rather came with false plea of being in possession of the suit property. Secondly defendants No.1 and 2 are entitled to benefit of Section 53 A of the Transfer of Property Act. They had paid entire sale consideration and were in possession of the suit property. In this view of the matter, the plaintiff cannot claim possession of the suit property from defendants No.1 and 2 and their brothers being vendees under the agreement. On the contrary, the plaintiff did not file any replication and thereby impliedly admitted the plea taken up by defendants No.1 and 2 in their written statement that they along with their brothers are in possession of the suit property pursuant to agreement dated 27.05.1980. Plaintiff's own father having executed the said agreement, the plaintiff cannot claim possession of the suit property from the vendees under the said agreement. Learned counsel for the appellant contended that none of the defendants has stepped into the witness box. This contention also does not help the appellant because Mewa Ram DW-1 is real brother of defendants No.1 and 2 and also one of the vendees under the aforesaid agreement. Consequently, testimony of Mewa Ram is as good as that of defendants No.1 and 2. REGULAR SECOND APPEAL No.3692 OF 2010 -6- Defendants have also examined Charan Singh DW-2 who is attesting witness of the aforesaid agreement. He also proved the said agreement. DW-4 Maya Ram was Assistant Line Man in Electricity Board. He also deposed that electricity connection exists in the suit property in the name of Kali Ram defendant No.1 and this witness used to attend the complaints regarding the said electricity connection. Lakhmi Chand DW-5 worked as Clerk to the Notary who attested the agreement dated 27.05.1980. This witness has proved the said attestation of the Notary who had since died. Thus defendants have led enough cogent evidence to prove their case, whereas plaintiff has miserably failed to prove his case. Oral statements of plaintiff and his witness Ram Chander are not sufficient to establish that plaintiff is either owner or ever remained in possession of the suit property. The plaintiff admitted that there is no document, whatsoever, to depict that he has ever been in possession of the suit property. On the contrary, pass-book of land holding of Ram Kala Exhibit P-1 and copy of Jamabandi for the year 1996-97 Exhibit P-2 produced by the plaintiff himself depict that Gram Panchayat was owner of the suit property. It is undisputed that the suit property was allotted to plaintiff's grandfather Ram Kala. However, he never became owner thereof. Consequently, after agreement to sell dated 27.05.1980 executed by plaintiff's father Narata Ram and uncle Ram Saroop, plaintiff was not left with any right, title or interest in the suit land because even his predecessors had not become owner of the suit property which had been allotted to Ram Kala but ownership was not conferred on him. The plaintiff has also failed to prove that he was dispossessed from the suit property during pendency of the suit. On the contrary, defendants No.1 and 2 and their brothers are in possession of 2/3rd REGULAR SECOND APPEAL No.3692 OF 2010 -7- share of the suit property since the year 1980, whereas, defendant No.3 is in possession of his 1/3rd share of the suit property. The plaintiff never remained in possession thereof and, therefore, question of his dispossession during the pendency of the suit did not arise. For the reasons aforesaid, I have no hesitation in concluding that the plaintiff has been rightly non-suited by the courts below. Plaintiff has miserably failed to prove his case, whereas, defendants have led cogent and reliable evidence to substantiate their version. Concurrent finding of fact recorded by both the courts against the plaintiff-appellant is fully justified by the evidence on record and is supported by cogent reasons and is based on proper appreciation of the evidence on record. The said finding is not shown to be perverse or illegal in any manner so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is frivolous and meritless and is accordingly, dismissed in limine. (L. N. MITTAL) JUDGE 4th February, 2011 'raj'