RSA No.2130 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2130 of 1985 Date of Decision: 06.08.2010 Balwinder Singh & Anr. ..Appellants Vs. Kewal Krishan & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Gaurav Chopra, Advocate, for the appellants. Ms.Shilpa Malhotra, Advocate, for the respondents. --- Vinod K.Sharma,J. (Oral) This regular second appeal by the defendants/appellants is directed against the judgment and decree dated 26.3.1985, passed by learned courts below, vide which suit filed by the plaintiffs/respondents for possession of the land measuring 57 kanals 2 marlas, as detailed in the head-note of the plaint, stands decreed. The case pleaded was, that the plaintiffs were the owners of the suit land, which they purchased from one Ranbir Inder Singh vide sale RSA No.2130 of 1985 2 deed dated 25.6.1976. It was the case of the plaintiffs, that in the absence of the plaintiffs/respondents, defendants/appellants entered into illegal possession of the suit land. The case of the plaintiffs, therefore, was that the defendants/appellants had no right to remain in possession. The suit was contested by the defendants by pleading therein, that the plaintiffs/respondents had entered into an agreement to sell the suit land along with other land to the defendants. The agreement in this regard was executed in favour of the father of the defendants/appellants whereby the plaintiffs/respondents, received a sum of Rs.5,000/- (Rupees five thousand only), as earnest money. The case set up by the defendants/ appellants was, that the land measuring 60 kanals 16 marlas was sold by the plaintiffs to the defendants on 28.1.1980, but the land in dispute could not be sold by the plaintiffs/ respondents because it was transferred to surplus pool. The case of the defendants/appellants further was, that defendants were put in possession of the suit land by the plaintiffs/respondents under the agreement executed by them in favour of the father of the defendants. The claim, therefore, was that the defendants were in possession in lieu of payment of Rs.7000/- (Rupees seven thousand only) paid by their father, to the plaintiffs by way of earnest money at the time of execution of the agreement. Learned trial court on the pleadings of the parties framed the following issues:- 1. Whether the defendants are in illegal possession of the RSA No.2130 of 1985 3 suit land? OPP 2. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Relief. On issue No.1, defendants/appellants were held to be in illegal possession of the suit property, as the agreement was entered into by the plaintiffs/respondents, with the father of the defendants/ appellants, therefore, they could not claim any right under the said agreement during life time of their father, therefore, were in illegal possession of the suit land. On issue No.2, contention raised by the defendants/appellants was, that the agreement was executed by the father of the defendant/appellants for the benefit of defendants and their mother, therefore, their mother was also necessary party to the suit. The learned trial court did not agree with this contention and decided issue No.2 against the defendants/appellants, as mother of defendants/appellants could not be said to be a necessary party. Issue No.3 was not pressed. In view of findings on issue No.1, suit for possession was decreed. The defendant/appellants preferred an appeal. In the appeal learned lower appellate court framed the following additional issues:- RSA No.2130 of 1985 4 1. Whether the land in suit had become surplus and the plaintiffs have no locus standi to sue? OP Appellants 2. Whether the appellants are in possession of the land in suit in part performance of the agreement to sell dated 13.12.1979? OP Appellants. 3. Whether the suit for specific performance of the agreement to sell is pending and if so to what effect? OP Appellant. The case was sent to learned trial court for report on additional issues. The additional issues were also decided in favour of he plaintiffs/respondents. Learned lower appellate court agreed with the findings of learned trial court on issues No.1, 2 and 3. Additional issue No.1 on receipt of report from the learned trial court, was decided against the appellants by recording, that as the agreement was executed with the father of the defendants/appellants, therefore, they could not claim to be in possession of the suit land. Additional issue No.2 was also decided against the appellants, by holding that defendants/appellants were not in possession in part performance of agreement to sell. On additional issue No.3, it was held that the suit for specific performance was pending and the findings recorded in the said suit would be binding on the parties. Learned counsel for the appellants raised the following RSA No.2130 of 1985 5 substantial question of law for consideration in this appeal: Whether the findings recorded by the learned courts below are the outcome of misreading of evidence, therefore, perverse? The learned counsel appearing on behalf of the appellants, in support of substantial question of law contended, that the reading of the agreement to sell, clearly showed that the agreement was executed for the benefit of the appellants/defendants and their mother and therefore, it could not be said that the defendants/appellants, could not claim any benefit or right of possession. The finding recorded by the learned courts below, therefore, is the outcome of misreading of evidence, thus perverse. It is also the contention of the learned counsel for the appellants, that once the execution of the agreement was admitted, their possession was liable to be protected under section 53-A of the Transfer of Property Act. The learned courts below committed an error in deciding additional issue No.2 against the appellants by misreading the evidence. It is also the contention of the learned counsel for the appellants that the finding of illegal possession is based on no evidence. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. After going through the agreement one thing is clear, that no possession was transferred under the agreement to the defendants/ appellants, therefore, in the absence of possession having been given in part performance of the agreement to sell, the defendants/appellants cannot RSA No.2130 of 1985 6 claim benefit of section 53-A of the Transfer of Property Act, There is, thus, no error in the findings recorded by the learned lower appellate court on additional issue No.2. Findings recorded by the learned courts below also cannot be said to be outcome of misreading of evidence, inasmuch as it is not in dispute that on the date when the suit was filed, the father of the plaintiffs was alive and in order to assert his right he had filed a suit for specific performance under which he could claim necessary relief. In the absence of any documentary evidence in favour of the defendants/appellants, learned courts below were justified in holding, the possession of the defendants/appellants was illegal. Learned courts below were also right in decreeing the suit for possession in favour of registered owner. To protect the right of the defendants/appellants, learned lower appellate court already observed, that the parties would be bound by the decision in suit for specific performance filed by the father of the defendants/appellants. The substantial question of law for the reasons stated is answered in favour of the plaintiffs/respondents and against the appellants. No merit. Dismissed, but with no order as to costs. 6.08.2010 (Vinod K.Sharma) rp Judge