C.R. No.1708 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.1708 of 2010 Date of decision 12.5.2010. Tara Chand and another ...... Petitioners. versus Gurinder Singh and others ...... Respondents. Present : Mr. Ishwar Lal, Advocate for the petitioners. Mr. Kanwaljit Singh, Senior Advocate with Mr. Harmanjit Singh, Advocate for respondent No.1. Mr. Avnish Mittal, Advocate for respondent No.2. C.R. No.2323 of 2010 Tara Chand and another ...... Petitioners. versus Gurinder Singh and others ...... Respondents. Present : Mr. Ishwar Lal, Advocate for the petitioners. Mr. Kanwaljit Singh, Senior Advocate with Mr. Harmanjit Singh, Advocate for respondent No.1. Mr. Narinder Lucky, Advocate for respondent No.2. CORAM ; HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI. J. By this common order, I intend to dispose of Civil Revision No.1708 of 2010 titled as Tara Chand and another versus Gurinder C.R. No.1708 of 2010 2 Singh and others and Civil Revision No.2323 of 2010 titled as Tara Chand and another versus Gurinder Singh and others, whereby challenging the order dated 5.3.2010 passed by learned Additional District Judge, Patiala. Since both these revision petitions have arisen out of the same orders, these are being disposed of together by a common order. The facts are being taken from Civil Revision No.1708 of 2010. The relevant facts are that plaintiff Gurinder Singh filed suit for specific performance of agreement to sell dated 16.10.2008, executed by defendant No.1 through his attorney defendant No.2, in respect of the suit land, fully detailed in the head note of the plaint, thereby directing defendants No.1 and 2 to execute the sale deed of the suit land in favour of the plaintiff. Declaration was also sought to the effect that alleged sale deed dated 18.06.2009 executed by defendant No.1 in favour of defendants No.3 and 4, registered on 24.07.2009 in respect of the suit land is liable to be set aside and the resultant mutation, if any, sanctioned in favour of defendants No.3 and 4 are illegal, null and void and not binding upon the rights of the plaintiff and the same does not confer any right, title or interest upon defendants No.3 and 4. Permanent injunction was also sought for restraining defendants No.3 and 4, their agents, servants and representatives from alienating, encumbering, mortgaging the suit land on the basis of alleged sale deed dated 18.06.2009, registered on 24.07.2009 and also from taking forcible possession or interfering in any manner in the peaceful possession of the plaintiff over the suit land. C.R. No.1708 of 2010 3 It has been alleged that on 16.10.2008 when defendant No.2 executed agreement to sell in favour of the plaintiff, he was duly authorized to do the same, vide general power of attorney dated 15.01.2007 executed by defendant No.1 in favour of defendant No.2, which had not been cancelled till that date. The said general power of attorney dated 15.01.2007 was cancelled on 02.03.2009, vide cancellation deed and notice was issued to defendant No.2 regarding that on 04.03.2009. Regarding possession, the plaintiff has submitted that vide mutation dated 09.06.2009, his name has appeared in the possession column of latest khasra girdawari. Since defendant No.1 has not challenged that entry till date, as such, that entry has become final. Therefore, the plaintiff prayed for grant of ad-interim injunction as prayed for. Upon notice of the suit, defendant No.1 appeared and contested the stay application by filing written statement on the ground that since he (defendant No.1) has taken permission of Court before selling the land to defendants No.3 and 4, as such, they have become vendees with the permission of the Court and they cannot be restrained from alienating the suit land. Defendant No.1 has further stated that on the date of execution of general power of attorney dated 15.01.2007, he was not authorized to do the same, as sale certificate had not yet been issued to him and on that date the Government was the rightful owner. He has further contended that defendant No.2 obtained the power of attorney dated 15.01.2007 from defendant No.1 in his favour by playing fraud upon him, which was duly cancelled by defendant C.R. No.1708 of 2010 4 No.1, vide cancellation deed dated 02.03.2009 and notice dated 04.03.2009. Name of defendant No.2 was never incorporated in the khasra girdawari, which proves that possession has never been handed over to defendant No.2. The name of plaintiff appeared in the latest girdawari due to his influence and in connivance with the revenue authorities. Moreover, in that entry the plaintiff has been shown as tenant of defendant No.1. This entry is inconsistent with the latest jamabandi and does not carry any weight, as no presumption of truth is attached to the girdawari. In his separate written statement filed by defendant No.2, he has contended that the Transfer of Property by defendant No.1 and defendant No.2 is hit by Section 43 of Transfer of Property Act, as defendant No.1 is estopped from denying this transfer. Neither general power of attorney was executed nor defendant no.1 was owner of the property. As such, there was no need to defendant No.2 to get the mutation sanctioned in his favour. Defendants No.3 and 4 in their separate written statement have contended that the sale deed in their favour was executed with the permission of the Court, as such, no injunction can be granted restraining them from alienating the suit land. After hearing the learned counsel for the parties and going through the records on file, the learned lower Court, vide the impugned order dated 11.11.2009 allowed the application U/O 39 Rules 1 and 2 of CPC filed by the plaintiff and defendants No.3 and 4, their agents, servants and representatives were restrained from alienating, C.R. No.1708 of 2010 5 encumbering and mortgaging the suit land on the basis of alleged sale deed dated 18.06.2009 till final decision of the suit. However, no stay qua possession of the suit land was granted. Aggrieved from the impugned order dated 11.11.2009 passed by the learned lower Court, the plaintiff has filed appeal for modifying the impugned order and allowing the application filed by them U/O 39 Rules 1 and 2 CPC in toto with regard to dispossession of the suit land. Whereas, defendants No.3 and 4 namely Tara Chand and Ashok Kumar filed the appeal for setting aside the impugned order dated 11.11.2009 and for dismissal of the stay application filed by the plaintiff in toto. The learned Additional District Judge, Patiala after hearing learned counsel for the parties, affirmed the order restraining the present petitioners from alienating the suit land and the prayer of the plaintiff regarding dispossession was allowed by accepting the appeal and present petitioners were restrained from taking possession of suit land by force and method other than due process of law. Feeling dis-satisfied from both the aforesaid orders, the instant revision petitions have been filed by the petitioners-defendant Nos.3 and 4. The learned counsel for the revisionists Tara Chand has submitted that Miss. Poonam Bansal, learned Civil Judge (Junior Division), Rajpura vide order dated 11.11.2009 returned a definite finding that Gurinder Singh plaintiff has failed to prove his possession over the suit property and has further observed that plaintiff Gurinder Singh never came into actual possession of the suit property. This finding has been returned after appreciation of the documents on the C.R. No.1708 of 2010 6 file. It is settled law that the Appellate Court should not interfere in the finding of trial Court in respect of grant or refusal of injunction being discretionary in nature unless, the same is perverse. The said finding of the trial Court is based upon reasoning. The Appellate Court has committed illegality by interfering in the well reasoned order of the trial Court in respect of refusal of injunction regarding possession. It is further submitted that petitioners have purchased the suit property after getting permission from the Court and has paid a considerable amount. Possession of the property has been handed over to the revisionist i.e. defendant Nos.3 and 4 Tara Chand and Ashok Kumar by the vendor. Plaintiff claimed to be in possession of the suit property on the basis of an agreement to sell alleged to be executed by Gurpreet Singh as attorney of Joginder Singh. An amount of Rs.25,00,000/- has been stated to be paid to Gurpreet Singh at the time of execution of the agreement dated 16.10.2008. According to the case of the plaintiff, Joginder Singh executed agreement to sell in favour of Gurpreet Singh and also executed power of attorney in his favour on 15.1.2007. The said power of attorney dated 15.1.2007 is forged fabricated document. Otherwise also, Joginder Singh has cancelled the power of attorney on 2.3.2009 and notice for the same has been issued to Gurpreet Singh. Joginder Singh defendant was allotted the land in the year 1976. The amount was payable in instalment and ultimately Joginder Singh became owner on 4.6.2009 after deposit of the amount. Prior to 4.6.2009 Joginder Singh himself was not the owner and as such he was not competent to execute the agreement to sell in favour of C.R. No.1708 of 2010 7 Gurpreet Singh. The agreement dated 16.10.2008 in favour of Gurpreet Singh is an unregistered document and is otherwise in admissible in evidence. In fact, the land of Balwinder Singh was declared surplus. Gurpreet Singh defendant is the sister's son of Balwinder Singh. The surplus land was allotted to Joginder Singh in the year 1976. In fact, Balwinder Singh, who has been deprived of the land on account of declaring it as surplus, wants to create hurdle in the peaceful use of the land by Joginder Singh. So, Balwinder Singh in connivance with Gurpreet Singh got the agreement and power of attorney forged in favour of Gurpreet Singh on 15.1.2007. The revenue record does not show the possession of the plaintiff. The agreement which is unregistered document does not create any title. An amount of Rs.25,00,000/- is stated to have been paid at the time of agreement dated 16.2.1988 but no convincing evidence has been placed on the file that plaintiff Gurinder Singh has the capacity to pay such a huge amount. In fact, he is a tool in the hands of Gurpreet Singh to deprive the revisionists from the peaceful use of the land. So, the prayer has been made for acceptance of revision petition and for setting aside the order of learned Additional District Judge. The learned counsel for the petitioners has further contended that both the Courts below have wrongly restrained the petitioners from alienating the suit property. They have purchased the property with the permission of the Court. Had the Court convinced by the agreement in favour of Gurpreet Singh, in that case, the permission to sell the land would not have been granted in favour of C.R. No.1708 of 2010 8 the revisionist. So, the prayer has been made for dismissal of the application for injunction regarding alienation by setting aside judgment of both the Courts below. The entry in the khasra girdwari in respect of Rabi 2009 is based upon Rapat No.141 dated 23.10.2008. Gurinder Singh has been shown to be in possession as tenant under Joginder Singh. It is not the case of any of the party that plaintiff Gurinder Singh is tenant under Joginder Singh. So, the said stray entry has been rightly ignored by the trial Court. It is further contended that the order of granting permission to sell the suit property to the plaintiff was challenged by Gurinder Singh in a Civil Revision Petition No.3554 of 2009 and his revision petition was dismissed vide order dated 2.7.2009 (Annexure P- 2). The plaintiff challenged the said order of Civil Revision Petition No.3554 of 2009 before Hon'ble Apex Court by Special Leave to Appeal (Civil Appeal No.15060/2009) and the same was dismissed as withdrawn on 21.7.2009 by the Hon'ble Apex Court vide Annexure P-3. So, the chapter of grant of permission to sell the property in favour of the petitioner has become final even upto to the Hon'ble Supreme Court. The plaintiff after spending huge amount has been restrained by the Appellate Court from enjoying the fruits of land by illegal order passed by the Appellate Court by disturbing the well reasoned order passed by the trial Court. Mrs. Jagdeep Kaur Virk, Civil Judge (Senior Division), Rajpura vide order dated 31.7.2009 refused to grant the interim relief qua possession to plaintiff Gurinder Singh. So, the prayer has been made for acceptance of revision petition and for setting C.R. No.1708 of 2010 9 aside the order of learned Additional District Judge, Patiala regarding grant of relief of injunction against the petitioner and further prayer has been made for setting aside the order of the trial Court as well as Appellate Court so far as the relief of alienation is concerned and prayer has been made for dismissal of the application for injunction regarding both the relieves. In reply to the above noted submissions, learned counsel for the respondent-plaintiff has supported the judgment of learned Additional District Judge. It is submitted that in the revenue record, there is entry vide Rapat No.141 dated 23.10.2008 showing possession of the plaintiff over the suit property. The plaintiff has paid a sum of Rs.25,00,000/- at the time of execution of the agreement dated 16.10.2008. So, in these circumstances the impugned order passed by the learned Additional District Judge is perfectly inconsonance with justice. The Appellate Court has the power to set aside the order of trial Court if it is wrong on the face of it. The order of the trial Court was wrong and in these circumstances, prayer has been made for dismissal of both the revision petitions. I have considered the submissions made by both the sides and have gone through the records of the case. There are two aspects of the case, one is whether the appellate Court was right in passing an injunction order against the defendant Nos.3 and 4 from taking possession of the suit property by force and method other than due process of law by disturbing the finding of the trial Court that plaintiff is not in possession, second C.R. No.1708 of 2010 10 whether both the Courts below have committed illegality by passing the injunction order restraining the defendants from alienating the suit property. So far as the facts of the case are concerned that are not in much dispute. The plaintiff claimed that Gurpreet Singh as attorney of Gurinder Singh executed an agreement dated 16.10.2008 and delivered the possession to him whereas the case of the defendant is that they have purchased the suit property vide sale deed dated 18.6.2009 executed by Joginder Singh in favour of defendant Nos.3 and 4, now petitioners with the permission of the Court. It has also come on the record that the Court granted permission to Tara Chand and Ashok Kumar to purchase the property. The said order of permission to sell property was challenged by present plaintiff in Civil Revision No.3554 of 2009 and that Civil Revision was dismissed vide order dated 2.7.2009 by7 this Court. The order of this Court in Civil Revision No.3554 of 2009 was challenged by the petitioner-plaintiff in Hon'ble Apex Court vide Special Leave to Appeal © No.15060 of 2009 but ultimately the same was dismissed as withdrawn to pursue the remedies available to the plaintiff in the Courts below. From these litigation, it is clear that the sale deed dated 18.6.2009 in favour of the present petitioners has not been interferred even upto the level of Apex Court. In the sale deed in favour of petitioners, it is mentioned that possession has been delivered to the petitioners. So far as the possession of the petitioners is concerned, the reliance has been placed on the khasra girdwari. In the crop rabi 2009, C.R. No.1708 of 2010 11 there is mention of Rapat No.141 dated 23.10.2008 and on the basis of the same Gurinder Singh has been shown to be in possession of the property as tenant (gair murousi) under Joginder Singh, the original allottee. In khasra girdwari, it has been further mentioned that two Farad Badar dated 4.11.2009 by Tehsildar Tara Chand and Ashok Kumar son of Gurditta Singh have been found to be in possession. It is settled law that plaintiff has to prove his possession over the suit property, in case he wants injunction in his favour. The trial Court held that Rapat No.141 dated 23.10.2008 does not show the possession of Gurinder Singh being a stray entry and reliance has been placed on authority of this Court in Arjan Singh and others vs. Hari Singh and thers 2007 (3) RCR (Civil) page 50 (P&H). It has been observed in the said ruling that entry recorded by Patwari not based on any order, document or title has to be ignored. It is also settled law that agreement does not confer any title. The rapat No.141 dated 23.10.2008 has been ignored by the trial Court on the grounds mentioned above. In the Rapat No.141 dated 23.10.2008, the possession of Gurinder Singh has not been shown on the basis of agreement but has been shown as tenant (gair murousi) under Joginder Singh. Joginder Singh is admittedly the owner of the suit property. The revisionists have taken a definite stand that possession has been delivered to them after execution of the sale deed in their favour. The said fact, according to the khasra girdwari has been verified by the Tehsildar after visiting the spot. So, the learned trial Court has rightly reached to the conclusion that plaintiff has failed to prove the possession and that possession was delivered to C.R. No.1708 of 2010 12 the present revisionists after execution of the sale deed in their favour. The first Appellate Court in impugned order dated 17.3.2009 up set the well reasoned order of the trial Court so far as possession is concerned. The Appellate Court should be slow in interfering in the discretionary order of injunction unless the order of the trial Court is perverse or illegal. The order of the trial Court cannot be said to be in any way illegal or perverse. The Appellate Court should not have lightly interferred in the order of the trial Court. The agreement to sell in favour of the plaintiff is unregistered document. Learned counsel for the petitioners has submitted that prima facie there is no proof that plaintiff was in position of paying Rs.25,00,000/-. So, in these circumstances, the Appellate Court should not have interferred in the order of the trial Court dated 11.11.2009. There is another glaring fact which has not been disputed during the course of argument that land of Balwinder Singh has been declared surplus, which has been ultimately allotted to Joginder Singh, which is the subject matter of the suit. Counsel for the respondents could not deny the fact that Gurpreet Singh is the sister's son of Balwinder Singh, whose land has been declared surplus. So, in these circumstances, the Appellate Court should have gone slow in interfering in the well reasoned order passed by the trial Court. So far as the aspect of alienation of the suit property is concerned, both the Courts below have given a concurrent finding that alienation should be stayed. The said finding in my view cannot be C.R. No.1708 of 2010 13 interferred. So, the order qua alienation stands upheld. However, it is observed that if in case of extreme urgency, the petitioners-defendant Nos.3 and 4 want to sell the property, in that case they can alienate only after obtaining the permission of the Court. In view of the above discussion, the order dated 5.3.2010 passed by learned Additional District Judge, Patiala stands partly set aside and the order dated 11.11.2009 passed by the learned trial Court stands restored with the observation that in case of extreme urgency, the petitioners can sell the property after the permission of the trial Court. So, both the above said revision petitions stand disposed of in the terms mentioned above. Nothing stated hereby above shall have no affect on the merits of the main case. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE May 12th , 2010 sv