RSA No.4072 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.4072 of 2007 Date of Decision: 18.8.2009 Dalmir Singh and others .....Appellants Vs. Sadhu Khan ....Respondent RSA No.4073 of 2007 Dalmir Singh and others ....Appellants Vs. Sadhu Khan ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. R.K. Gupta, Advocate for the appellants. Mr. H.S. Sullar, Advocate for the respondent. .... RAJIVE BHALLA, J This order shall dispose of RSA Nos.4072 of 2007 and 4073 of 2007, as they arise from the same suit and from the same judgements and decrees. The defendants/appellants challenge the judgement and decree dated 22.5.2007, passed by the Additional District Judge, Ambala, accepting the appeal filed by the plaintiff/respondent and as a consequence setting aside the judgement and decree dated 7.10.2006, passed by the Additional Civil Judge (Senior Division), Ambala. The plaintiff/respondent filed a suit for permanent injunction RSA No.4072 of 2007 2 for restraining the defendant/appellants from interfering in his peaceful possession and ownership over the property described by the letters A, B, C and D in the site plan. Upon notice, the appellants filed a joint written statement pleading therein that the suit land consists of two adjoining kuraries, the southern half portion measuring about 1 marla was owned and possessed by the respondent and the northern half portion also measuring about 1 marla is owned and possessed by appellant no.1. After the construction of Ravi Dass Mandir, the respondent faced some difficulty in approaching his kurari. He, therefore, entered into an oral agreement to sell his half portion to appellant no.1 for Rs.3,000/-. On 14.4.1999, appellant no.2 paid Rs.3,000 to the respondent and was handed over actual physical possession of the suit land. The appellants are, therefore, owners in possession of the suit land. In addition, the appellants filed a counter claim praying for specific performance of the oral agreement to sell. The trial court dismissed the suit filed by the respondent and decreed the counter claim filed by the appellants by holding that the respondent has admitted the oral agreement to sell and the receipt of Rs.3,000/- while lodging an FIR against the appellants. Aggrieved by the aforementioned judgement and decree, the respondent filed two appeals, one against the dismissal of his suit and the second against the decree of the counter claim, filed by the appellants. Vide judgement and decree dated 22.5.2007, the Additional District Judge, Ambala accepted the appeal, set aside the judgement and decree passed by the trial court, decreed the suit for permanent injunction in favour of the respondent and dismissed the counter claim. The first appellate court held that the trial court could not have based its findings RSA No.4072 of 2007 3 upon the contents of the First Information Report, Mark-A, to hold that the oral agreement stood proved, as neither the official who recorded the report nor the investigating officer were examined. It was also held that it was unlikely that Dalmir Singh, appellant no.1 who is the Lambardar of the village would have entered into an oral agreement to sell. It was also held that the respondent was in possession and, therefore, entitled to an injunction to protect his possession. Counsel for the appellants submits that in the absence of any reliable evidence to prove the respondent's ownership or possession, the first appellate court erred in reversing the judgement and decree passed by the trial court. It is argued that the first appellate court committed an error in rejecting the oral agreement, as the respondent has admitted the agreement to sell and the receipt of Rs.3,000/- while lodging the FIR Mark-A. It is also argued that as the appellants are in possession in part performance of the agreement to sell, the first appellate court committed an error in issuing an injunction against them. The first appellate court has reversed the finding recorded by the trial court, without discussing the evidence produced by the appellants and without dealing with the findings recorded by the trial court that the respondent is guilty of concealment of material facts. It is submitted that in view of the errors committed by the first appellate court, the following substantial questions of law arise for consideration :- (i)Whether the impugned judgement and decree passed by the ld. Ist Appellate Court decreeing the suit of the plaintiff/respondent and dismissing the counter claim of the defendants/appellants, are totally illegal, without RSA No.4072 of 2007 4 jurisdiction, perverse result of misreading of evidence and wrong interpretation of law applicable thereto and are not sustainable in the eyes of law ? (ii)Whether the impugned judgement and decree, passed by ld. Ist Appellate Court without discussing the evidence of the plaintiff/respondent and based only on the evidence adduced by defendants/appellants is sustainable in the eye of law ? (iii)Whether the plaintiff/respondent, who is not coming to the court with clean hands and is guilty of concealing the material facts from the court, is entitled to the discretionary relief of permanent injunction ? (iv)Whether a decree for permanent injunction can be passed without there being any evidence on record to prove the possession of the plaintiff/respondent over the suit land ? (v) Whether the ld. Ist Appellate Court have legally erred in dismissing the counter claim filed by the defendants/appellants, particularly when the receipt of entire sale consideration is admitted by the plaintiff/respondent ? (vi) Whether the defendants/appellants is entitled to protect his possession obtained by him in part performance of the agreement entered with him ? Counsel for the respondent, on the other hand, submits that the RSA No.4072 of 2007 5 trial court placed sole reliance on the FIR Mark-A to hold that the respondent had orally agreed to sell the kurari for a sum of Rs.3,000/-. It is submitted that the first appellate court rightly held that the FIR could not be led into evidence, as it had not been proved in accordance with law. It is argued that during his cross-examination, the respondent denied that he had made a statement before the police that he had sold his kurari to Shishpal s/o Dalmir for Rs.3,000/- and, therefore, the onus to prove the agreement lay upon the appellants. The appellants have, however, failed to prove the agreement or the FIR by producing the author of the report or the Investigating officer. It is further argued that the findings recorded by the first appellate court are legal and valid and do not suffer from any error of law. I have heard learned counsel for the parties, perused the impugned judgement and the questions of law framed by counsel for the appellants. As referred to herein before, the dispute in the present case relates to a kurari that admittedly belongs to the respondent. In their written statement, the appellants admit that the southern half portion of the kurari measuring about 1 Marla belonged to the respondent but by an oral agreement, he agreed to sell this land and received Rs.3,000/- on 14.4.1999. In view of this unambiguous stand, the onus to establish the oral agreement, the receipt of Rs.3,000/- and the delivery of possession, lay upon the appellants. The trial court has relied upon the FIR Mark-A to hold that the respondent has admitted the oral agreement to sell. The first appellate court has reversed this finding by holding that the FIR could not be led into evidence as the FIR has not been proved by examining the RSA No.4072 of 2007 6 official who recorded the report or by examining the Investigating Officer. I find no error in this finding, as the FIR Mark `A' has not been proved. In addition, during his cross-examination, the respondent, denied having made a statement to the police accepting the oral agreement and the receipt of Rs.3,000/-. Despite this firm denial, the appellants chose not to produce the official who recorded the FIR or the Investigating Officer to prove the FIR. The first question of law is general in nature and has to be answered with the other questions. The next question that the first appellate court has decided the appeal without discussing the appellants evidence is factually incorrect. The first appellate court has referred to the depositions of the appellants' witnesses, considered them in their entirety and only thereafter recorded an opinion against the appellants. The third question of law is apparently based upon a finding by the trial court that as the plaintiff/respondent did not refer to the oral agreement to sell in his plaint, he is guilty of concealing material information. The plaintiff-respondent cannot be held guilty of concealing a fact that he emphatically denies. By way of the fourth question of law, the appellants assert that the decree of permanent injunction could not be passed, as there is no evidence to prove that the respondent is in possession of the suit land. The first appellate court has held that DW-1 Charan Dass has admitted that the respondent had installed doors about 5-6 years ago, which open into the street. DW-5, appellant no.1 has admitted that articles belonging to Sadhu Khan, respondent were lying in the suit property and Sadhu Khan used to park his tractor and tether his cattle in the suit property. It is, therefore, apparent that the appellants have, in essence, admitted the respondent's possession. RSA No.4072 of 2007 7 The fifth question of law relates to the oral agreement to sell and the dismissal of the counter claim. As already held, the appellants have failed to prove any oral agreement to sell or the payment of Rs.3,000/- or the delivery of possession. The first appellate court, therefore, rightly held that the agreement has not been proved and dismissed the counter claim. The last question relates to the appellants' plea that they are entitled to protect the possession delivered to them, in part performance of an agreement. Suffice it to say that as the agreement has not been proved, there is no question of protection of possession, obtained in part performance of an agreement. In view of what has been stated herein above, as the impugned judgement and decree do not suffer from any error of law, the appeals are dismissed with no order as to costs. 18.8.2009 (RAJIVE BHALLA) GS JUDGE