RSA No.388 of 1999(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.388 of 1999(O&M) Date of decision: 31.1.2009 Raj Kumar ......Appellant Versus Ram Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Surinder Dhull, Advocate for the appellant. Mr. Vinod Gupta, Advocate for the respondent. * * * Rakesh Kumar Garg, J. This is defendant's second appeal challenging the judgment and decree of the Lower Appellate Court whereby the suit of the plaintiff- respondent has been decreed and the appellant has been directed to deliver the possession of a vacant plot after removing the malba within a period of three months failing which the plaintiff-respondent was entitled to take possession of the plot in dispute along with the building. Ram Singh-plaintiff-respondent filed a suit seeking a decree for permanent injunction restraining the appellant-defendant from interfering with his possession over a plot measuring 0 Kanal 3 marlas comprised in Khasra No.856//58/47 situated at village Bhuna Tehsil Fatehabad District Hisar and from alienating the above said plot in any manner. The case of the plaintiff-respondent was that he was owner in possession of the plot in dispute. He purchased the same from one Atam Parkash vide registered sale deed dated 25.6.1992 for consideration of Rs.3000/- and was in possession thereof since then. According to the plaintiff, the defendant had no right, title or interest in the aforesaid plot. In spite of that he threatened to take forcible possession thereof which RSA No.388 of 1999(O&M) 2 necessitated the filing of the present suit. In the written statement filed by the defendant, it was asserted that he was owner in possession of the above said plot and he had raised construction thereon, even prior to the alleged sale deed in favour of the plaintiff-respondent. According to the defendant, Gram Panchayat was owner of the above said plot. The above said plot was gifted by the Gram Panchayat to Krishan son of Ganpat vide Ex.D-4 and mutation No.3720/4756(Ex.D3) was entered to this effect. Krishan son of Ganpat sold the above said plot to one Kishan Lal son of Ram Lal vide agreement dated 4.5.1991 (Ex.D5). Thereafter, the said Kishan Lal further transferred the above said plot in favour of Phoola vide agreement dated 3.6.1991 (Ex.D2). According to the defendant, thereafter he along with one Om Parkash purchased the above said plot from Phoola on 27.9.1991 and since then, they are in possession thereof. According to him, he had constructed the house over his possession which fell to his share. Thus, according to the defendant, the plaintiff-respondent had no right, title or interest in the above said plot and he never remained in possession thereof. In these circumstances, it was prayed that the suit of the appellant be dismissed. In the replication filed by the plaintiff-respondent, the facts stated in the written statement were denied and that of the plaint were reiterated. On the basis of the pleadings of the parties, the following issues were framed by the trial Court : “1. Whether the plaintiff is entitled to the relief of injunction on the ground mentioned in the plaint?OPP 2. Whether the defendant has disobeyed the order of injunction dated 21.8.1993, if so, to what effect?OPP RSA No.388 of 1999(O&M) 3 3. Whether the suit is not maintainable in the present form?OPD 4. Whether there is no cause of action?OPD 5. Whether the plaintiff has no locus standi to file the present suit?OPD 6. Whether the suit is bad for misjoinder and non- joinder of necessary parties?OPD 7. Whether the defendant is entitled to special costs?OPD” Both the parties led evidence in support of their respective case. After going through the evidence on record and after hearing learned counsel for the parties, the trial Court decided issues No.1 to 5 in favour of the defendant-appellant and against the plaintiff-respondent. Issues No.6 to 8 were not pressed by the defendant and therefore, the said issues were decided against him. In view of the findings on issue No.1 to 5, the suit filed by the plaintiff was dismissed. Feeling aggrieved by the judgment of the trial Court, the plaintiff filed an appeal. After appreciating the evidence on record, the Lower Appellate Court held that it has been duly proved that by virtue of decree dated 17.12.1990. Atam Parkash had become the owner of the plot in dispute and Krishan son of Ganpat was no more owner of that plot, and therefore, he could not transfer the plot to Krishan lal son of Ram Lal vide agreement dated 4.5.1991 (Ex.D5) and therefore, no title goes in favour of Krishan Lal and consequently, all other transactions whereby the title had been further transferred are void and do not pass any title in favour of the respective vendees and it was not proved that Raj Kumar-appellant became owner in possession of the plot in dispute. Under issue No.1, it was further held that he was in possession of the suit land and RSA No.388 of 1999(O&M) 4 dispossessed on 15.9.1993 forcibly by the appellant. The plaintiff- respondent who was in possession of the plot in dispute at the time of filing of the suit and who was dispossessed forcibly thereafter, was entitled to the relief of possession. Issue No.2 was not pressed by the plaintiff- respondent. Findings of the trial Court on issue No.3 to 5 were reversed and in view of these findings on issues No.1 to 5 the appeal filed by the plaintiff-respondent was accepted by the Lower Appellate Court vide judgment and decree dated 30.9.1998 and the appellant was directed to deliver possession of the vacant plot after removing the malba within a period of 3 months of the filing which the plaintiff-respondent was entitled to take possession of the plot in dispute along with the building. Still not satisfied, the defendant has filed the instant appeal challenging the judgment and decree of the Lower Appellate Court. On 9.10.2000, notice was issued to the plaintiff-respondent and status quo as regards possession was ordered to be maintained. Vide order dated 6.12.2000, the appeal was ordered to be admitted and interim directions dated 9.10.2000 were ordered to continue. At the time of hearing, it transpired that the appellant has not framed any substantial question of law arising out of this appeal. On the oral request of the counsel for the appellant, the following substantial question of law set to be arising in this appeal was framed: “Whether the Lower Appellate Court has erred at law while decreeing the suit for possession of the property in dispute in favour of the plaintiff-respondent on the basis of misreading and misinterpretation of the evidence on record?” Learned counsel for the appellant has vehemently argued that the Lower Appellate Court failed to appreciate the fact that to grant relief of RSA No.388 of 1999(O&M) 5 permanent injunction the only thing to be kept in mind and to prove was the possession of the parties over the disputed property and not the title of the parties. The possession of the appellant over the suit property has been disbelieved on the ground that the documents relied upon by the appellant claiming ownership were invalid documents. According to the learned counsel for the appellant, illegality of the documents in any manner does not effect the possession of the parties and possession of the appellant since 1991 has been clearly proved from the documents Ex.D1 to D5 and the statements of DW1 to DW3. Moreover, there is no evidence on record to prove possession of the plaintiff-respondent. The only evidence produced on record by the plaintiff-respondent is regarding purchase of the plot, according to the which, he purchased the disputed plot on 25.6.1992 and in such circumstances instead of a suit for permanent injunction the plaintiff-respondent should have filed a suit for possession. Thus, in the absence of any proof of possession, the suit for permanent injunction was not maintainable and therefore, the judgment and decree of the Lower Appellate Court was liable to be set aside and therefore, the appeal filed by the appellant is liable to be accepted and suit filed by the plaintiff-respondent is liable to be dismissed. On the other hand, learned counsel for the plaintiff-respondent has vehemently argued that the Lower Appellate Court on appreciation of evidence has recorded a finding of fact to the effect that by virtue of decree dated 17.12.1990 Atam Parkash (predecessor–in-interest of the plaintiff- respodent) had become the owner of the plot in dispute. So, Krishan son of Ganpat who was no more owner of that plot, could pass any title thereafter in favour of Krishan Lal and consequently all other transactions whereby the title has been further transferred vide Ex.D1 to D5 are void and do not pass any title in favour of the respective vendees and no fault can be found RSA No.388 of 1999(O&M) 6 with the aforesaid findings of the Lower Appellate Court and, therefore, the appeal is without any merit and is liable to be dismissed. I have heard learned counsel for the parties and perused the record. Admittedly, the land in dispute was initially owned by the Gram Panchayat and the same was transferred in favour of Krishan son of Ganpat vide gift deed (Ex.D4) and he became the owner thereof. Ex.P-2 is the mutation No.607 dated 20.7.1991. A perusal of the same makes it clear that by virtue of decree dated 17.12.1990 passed by the Civil Court, Atam Parkash became the owner of the above said plot. Ex.P1 is the sale deed dated 18.6.1992 whereby Atam Parkash sold the above said plot to Ram Singh (plaintiff-respondent) for a consideration of Rs.3,000/- which was executed on 25.6.1992 and mutation No.753 dated 31.8.1993 (Ex.P3) was entered in the revenue record to this effect. The facts mentioned in these documents, stand established from the statements of Ram Singh PW-1, Atam Parkash PW-2, and Roshan Lal PW-3. Atam Parkash PW-2 has stated that by virtue of Civil Court decree he became owner of the plot in dispute and thereafter he sold it to Ram Singh (plaintiff-respondent) vide sale deed dated 18.6.1992. He also stated categorically that at the time of sale, the plot in dispute was vacant and he had delivered its possession to Atam Parkash. To the same effect are the statements of Ram Singh and Roshan Lal PW-1 and PW-3 respectively. On the other hand, appellant has relied upon agreement Ex.D5, Ex.D2 and D1 to prove his case. Vide agreement Ex.D5 Krishan son of Ganpat sold the plot in question to Kishan Lal son of Ram Lal vide agreement dated 4.5.1991. Thereafter, Kishan Lal transferred the above said plot in favour of Phoola vide agreement dated 3.6.1991(Ex.D2) and thereafter Phoola transferred the above said plot to Ram Kumar and Om RSA No.388 of 1999(O&M) 7 Parkash vide agreement dated 27.9.1991(Ex.D1). The recital of these documents makes it clear that the executants had sold their rights in the plot. These documents are unregistered. The sale consideration in each of the transaction is more than Rs.100/-. As per Section 17(1) of the Indian Registration Act, 1908, any document whereby immovable property worth more than Rs.100/- is transferred is compulsorily registerable. In the absence of the same, these documents are inadmissible in evidence. It may also be pointed out here that it has been mentioned in Ex.D1 dated 27.9.1991 that Phoola handed over the possession of the plot in dispute to Raj Kumar (appellant) and Om Parkash while executing the agreement but in none of the documents i.e. D2 & D5, it has been mentioned that the vendor has handed over the possession to the vendee. If Phoola has not taken possession of the plot in dispute on 3.6.1991 vide Ex.D2 from Kishan Lal or Kishan Lal has not taken possession from Krishan son of Ganpat on 4.5.1991 vide Ex.D5, it was not possible that any possession could be delivered to the appellant by Phoola on execution of Ex.D-1. Moreover, the passing of the civil court decree on 17.12.1990 in favour of Atam Parkash is not in dispute. So Krishan son of Ganpat in whose favour initially the plot in question was transferred by the Gram Panchayat vide gift deed Ex.D4 was no more owner of the plot and therefore, he could not transfer any title thereafter to anyone legally. Thus, findings of the Lower Appellate Court to this effect in favour of the plaintiff-respondent cannot be challenged. Now adverting to the question of possession of the parties over the plot in question it is relevant to point out that admittedly, at the time of purchase by the plaintiff-respondent the plot was vacant. It is well settled that the owner of a vacant plot is deemed to be in possession thereof unless and until otherwise is proved. In the present case, there is no RSA No.388 of 1999(O&M) 8 evidence whatsoever on record to prove that the appellant was in physical possession of the plot in dispute prior to 15.9.1993 on which date he took forcible possession from the appellant. There is no documentary evidence placed on record to prove that he had constructed the house prior to the filing of the suit. As discussed above, the appellant cannot be held to be in possession of the vacant plot on the basis of the documents Ex.D-1 as Phoola the alleged predecessor-in-interest of the appellant from whom the appellant allegedly got possession was not put into possession and therefore, it cannot be held that he, while executing Ex.D1 handed over the possession of the plot in dispute to the appellant. Thus, no fault can be found with the findings of the Lower Appellate Court that the respondent was owner of the plot in dispute and was in possession thereof at the time of the filing of the suit and that he was dispossessed forcibly by the appellant. Since, it has been proved on record that the plaintiff- respondent was owner of the plot in dispute at the time of filing of the suit, therefore, the suit for permanent injunction was maintainable at that time. Since the respondent was forcibly dispossessed during the pendency of the suit therefore, he was held entitled to the relief of possession correctly. No fault can be found with the findings of the Lower Appellate Court. The substantial question of law as raised by the appellant is answered against him and in favour of the plaintiff-respondent. No merit. Dismissed. No costs. 31.1.2009 (RAKESH KUMAR GARG) ps JUDGE