RSA No.16 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.16 of 2004 Date of Decision:15.12.2008 Om Kanwar Bhardwaj & anr. ....appellants Versus Suresh Chander & ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Suresh Goyal, Advocate for the appellants Mr.G.K.Chawla, Advocate for respondent No.1. **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for permanent injunction restraining the defendants from interfering in the possession of the plaintiff and from raising any construction over the plot in dispute and further declaring the sale deed dated 04.04.1979 and 10.10.1986 as illegal, void and not binding on the rights of the plaintiff- respondent, was decreed. Suresh Chand-plaintiff had filed a suit for permanent injunction alleging that he was the owner in possession of a residential plot as detailed in para No.1 of the plaint. He purchased the plot from Sarup Singh and Kaptan Singh defendant Nos.4 and 5 for a sale consideration of Rs.2000/- vide registered sale deed dated 28.10.1964. He also received the possession from the defendants at the time of sale deed. The plaintiff thus alleged himself to be in possession since then as owner. The defendant Nos.1 and 2 namely Om Kanwar and Phool Singh tried to interfere in the possession of the plaintiff and also threatened to raise RSA No.16 of 2004 2 construction on the basis of two fictitious sale deeds dated 04.04.1979 and 10.10.1986. The plaintiff therefore challenged the sale deeds in question to be illegal, null and void. Relief of injunction was also claimed. Notice of the suit was given to the defendants. Defendants No.1 and 2 appeared, filed their written statement and denied the allegations of the plaintiff. They pleaded that they are the bona fide purchasers as they purchased the property in question from Smt.Harsh Peter vide two separate sale deeds dated 10.10.1986 of 100 sq.yards each for a sale consideration of Rs.6000/- each. It was alleged that the property is not the plot but a residential girwar. Thus, the defendants alleged that the possession was delivered to them by defendant No.3, after the execution of the sale deeds. The other pleas were denied. Defendant No.3 did not appear and he was proceeded against ex parte. Defendant Nos.4 and 5 also appeared and filed their written statement and pleaded that sale deed dated 28.10.1964 as alleged by the plaintiff is sham transaction and is a waste paper in the eyes of law. According to these defendants, the plaintiff got signed/thumb marked some printed blank papers from them on the pretext that he would get the plot in suit sold at a good price. Defendant Nos.4 and 5 alleged to be illiterate and had faith on the plaintiff who might have got the alleged sale deed executed and registered in his favour. It was denied that the sale deed dated 04.04.1979 in favour of defendant No.3 is illegal and does not confer any right, title or interest upon defendant No.3. According to these defendants the plaintiff had no right, title or interest in the suit property and prayed that the suit of the plaintiff be dismissed. After considering the evidence on record and hearing the learned counsel for the parties, the trial Court decreed the suit of the plaintiff-respondent. Appeal filed by defendant Nos.1 and 2 against RSA No.16 of 2004 3 the aforesaid judgment and decree of the trial Court was also dismissed by the Additional District Judge, Fast Track Court, Gurgaon vide impugned judgment and decree dated 31.07.2003. While dismissing the appeal of the defendant, the Lower Appellate Court observed as under: “While perusing the documents on record and the evidence of the parties, it is found that the plaintiff purchased the plot in question from defendant Nos.4 and 5 for a sale consideration of Rs.2000/- vide registered sale deed dated 28.10.1964. Documents Ex.PA, Ex.PB, Ex.PC, Ex.PD and Ex.PE are the copies of jamabandis placed on record which go to show that the plaintiff is owner in possession of the property in question. Once the sale deed dated 28.10.1964 was executed by defendants No.4 and 5 and the possession was also delivered to the plaintiff, the defendants No.4 and 5 had no right, title or interest to sell the same land again to some one else viz.defendant No.3 and who then sold the same to the defendants No.1 and 2. The revenue documents speak in favour of the plaintiff. The earlier sale deed registered in the year of 1964 cannot be thrown on the ground that the defendants No.4 and 5 with ulterior motive again sold the plot to defendant No.3 and then defendant No.3 sold the same to defendants Nos.1 and 2. Such an act of defendants No.4 and 5 cannot at all be appreciated. Since the parties are contesting the property in question, it does not matter whether number of plot here and there was not correctly mentioned in the documents. The parties are well aware about the disputed property and that is the main reason that the litigation qua the property in dispute is going RSA No.16 of 2004 4 on. The mutation No.4475 Ex.PF sanctioned on 19.05.1969 in favour of the plaintiff is another circumstance to substantiate the case of the plaintiff that he is in possession of the plaintiff. Merely because the plaintiff was making the payment to a Finance company will not weaken his case. Statement of Shri Pran Sukh, Advocate as PW1 shows that after the entire consideration was paid by the plaintiff Kaptan Singh who was known to him executed the sale deed. The plaintiff if was residing at some other place on account of his posting, it does not mean that he be considered to be not in possession of the property is in question. The defendant No.3 should have made bona fide enquiries before entering into the sale transaction with defendants No.4 and 5. Similarly, the defendants No.1 and 2 should have bona fide enquiries from all the concerned and perused the documents before entering into any sale transaction. Simply making enquiries from the neighbours will not be sufficient. In view of all this, the observations of learned trial court that a person with such careless approach does not deserve any sympathy from the court of law, are correct. Hence the defendants are not entitled to any protection. The witnesses of the plaintiff fully proved the case on all material points. Minor discrepancies here and there in the statements would not be material as such do occur with the passage of time. The plaintiff has thus succeeded to prove that he is owner in possession of the suit property.” Still not satisfied, the defendants No.1 and 2 have filed the instant appeal challenging the judgment and decrees of the Courts below. The learned counsel for the appellants has vehemently RSA No.16 of 2004 5 argued that the suit of the plaintiff-respondent is not maintainable due to the reason that plaintiff-respondent has not been able to establish his possession on the suit property. Therefore, the suit of the plaintiff without seeking the possession of the property is not maintainable in the eyes of law. A mere suit for permanent injunction restraining the defendant- appellants from interfering in the possession of the plaintiff-respondent No.1 or from raising any construction is not maintainable when he is in possession of the suit property. The learned counsel for the appellants has further argued that in a suit for permanent injunction without seeking the declaration the sale deeds set up by the appellants in their defence cannot be set aside and thus the judgment and decrees of the Courts below are liable to be set aside and suit of the plaintiff-respondents is liable to be dismissed. On the other hand, learned counsel for the respondents has argued that the Courts below on appreciation of evidence have recorded a findings of fact that the plaintiff-respondent is owner in possession of the suit property on the basis of sale deed dated 28.10.1964 and thus the subsequent sale deeds in favour of the appellants carried no value in the eyes of law and the Courts below were right in law while decreeing the suit of the plaintiff-respondents. I have heard learned counsel for the parties and perused the record. There is no force in the contention raised by the learned counsel for the appellants. The plaintiff has in his favour a registered document to which prima facie presumption of truth is attached and which is further strengthened by Ex.PF i.e. copy of mutation No.4475 which was sanctioned in favour of the plaintiff-respondent on 19.05.1969. On the other hand, the original sale deeds set up by the defendants were not produced before the Court. Even no effort was made to prove the sale deeds by leading secondary evidence. The appellants are not entitled to RSA No.16 of 2004 6 protection of law since they did not make any bona fide enquiries before entering into the alleged sale transactions as set up by them. The contention of the learned counsel for the appellants that plaintiff- respondent is not in possession of the suit and therefore cannot seek permanent injunction, is wholly without any merit. From the documents Ex.PA, Ex.PB, Ex.PC, Ex.PD and Ex.PE which are copies of jamabandis placed on record, it is clearly established that plaintiff-respondent is owner in possession of the property in question. The mutation dated 19.05.1969 in favour of the plaintiff is another circumstance to substantiate the case of the plaintiff that he is in possession of the suit property. Simply because in his statement plaintiff-respondent has stated that his place of posting is somewhere else, will not negate his stand that he is in possession of the property in dispute. There is no evidence in favour of the appellants to show that they are in possession of the suit property. Moreover, the question as to whether who is in possession of the suit property is a question of fact which has been answered in favour of the plaintiff- respondent on appreciation of evidence by the Courts below. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 15.12.2008 neenu