RSA No.2348 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2348 of 2009 (O&M) Date of Decision:November 13, 2009 Anil Kumar ...........Appellant Versus Gulshan Kumar ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Jagdish Manchanda,Advocate for the appellant. Mr.Rakesh Gupta,Advocate for the respondent . ** Sabina, J. Plaintiff-Gulshan Kumar filed a suit for possession and recovery of mesne profit. The suit of the plaintiff was partly decreed and defendant was directed to hand over the possession of the disputed shop within six months from 9.4.2007 by the Additional Civil Judge (Senior Division) Pehowa vide judgment and decree dated 9.4.2007. Aggrieved by the same, defendant preferred an appeal and vide judgment and decree dated 22.4.2009, learned District Judge Kurukshetra dismissed the same and the impugned judgment and decree were upheld. Hence, the present appeal by the Defendant-Anil Kumar. The case of the parties, as noticed by the learned Additional District Judge in paras 2 to 5 of its judgment reads as under:- RSA No.2348 of 2009 (O&M) 2 “2.Facts of the case are that on 20.11.2003, the plaintiff/respondent filed a suit for possession and recovery of mesne profit with the averments that he had purchased a double storeyed shop measuring 4'x16', situated at Gurdwara Road, Pehowa, bearing MCP No 165, Ward No.12, bounded as fully described in para 1 of the plaint, from the defendant/appellant, vide sale deed scribed on 23.1.2002 and registered on 24.1.2002 vide vasika No.2681, in the office of Sub Registrar, Pehowa. 3.The further case of the plaintiff/respondent in the plaint is that the defendant/appellant had also agreed to sell the adjacent shop measuring 8'x16' to the plaintiff/respondent vide agreement to sell dated 29.1.2002, which shop was in occupation of tenant Naresh Kumar. As per the said agreement to sell dated 29.1.2002, sale deed in respect of the adjoining shop was to be got registered by the defendant/appellant on or before 30.8.2006. The said adjoining shop is, however, not a subject matter of the present suit. 4. The further case of the plaintiff/respondent in the plaint that the shop in dispute was lying vacant at the time of its sale and he was delivered actual physical possession of the same by the defendant/appellant. However, according to the plaintiff/respondent, in the month of February,2003, the defendant/appellant took unauthorized possession of the shop in dispute. The defendant/appellant was requested to hand over possession of the shop in dispute back to the plaintiff/respondent but to no effect. Hence, the present suit for possession of the shop RSA No.2348 of 2009 (O&M) 3 in dispute as well as for recovery of mesne profit of Rs.25,000/- for use and occupation of the shop in dispute by the defendant/appellant with effect from February,2003 till date. 5. The said suit was contested by the defendant/appellant. In the written statement, factum of execution of the sale deed dated 24.1.2002 vide vasika No.2681 in respect of sale of the shop in dispute to the plaintiff/respondent, was not denied by the defendant/appellant. However, it was pleaded that the said sale deed was without consideration and it was only a sham and paper transaction and the same was never acted upon. It was further pleaded that, in fact, the shop in dispute is constructed over and comprised in Rect. No.51 Killa No.33, which was owned and possessed by one Neelkanth and Upender Dutt, residents of village Pehowa. It was further pleaded that said Neelkanth and Upender Dutt had carved out shops out of the said khasra No. 33 and each shop was measuring 15 feet x 25 feet. It was further pleaded that father of the defendant/appellant had purchased shop No.23 and his mother had purchased shop No.24 and one Satish Kumar, uncle of the defendant/appellant had purchased shop No.24and one Satish Kumar, uncle of the defendant/appellant, had purchased shop No. 25 from said Neelkanth and Upender Dutt vide unregistered sale deeds dated 2.2.1965. It was further pleaded that shop in dispute is constructed on the shop, which was purchased by Satish Kumar, uncle of the defendant/appellant. It was further pleaded that one Ami Chand, brother of said Satish Kumar, had protracted litigation with said Satish Kumar. The RSA No.2348 of 2009 (O&M) 4 father of the defendant/appellant died in the year 1982. The defendant/appellant came in occupation of the shop in dispute in the year 1992 and prior to that, his uncle Satish Kumar was in possession of the shop in dispute. It was further pleaded that said Satish Kumar had been asking the defendant/appellant to vacate the shop in dispute and in order to defeat the rights of said Satish Kumar, the defendant/appellant had procured a decree against his own mother regarding his ownership, in respect of the shop in dispute, although, mother of the defendant/appellant had no title to the said shop in dispute. It was further pleaded that parties to the suit are close friends and the defendant/appellant had executed the sale deed in question in favour of the plaintiff/respondent in respect of the shop in dispute, which was a sham and paper transaction and the said sale deed was never to be acted upon. It was further pleaded that the plaintiff/respondent had money dealing with the defendant/appellant and the plaintiff/respondent had borrowed a sum of Rs. 1,50,000/- from the defendant/appellant vide pronote dated 1.3.2002. It was further pleaded that the defendant/appellant has been in possession of the shop in dispute since the very beginning and he has been doing the business of photo framing in the same since the year 1992. Various preliminary objections were also taken, which shall be reflected in the issues. Hence, it was prayed that the suit may be dismissed.” On the pleadings of the parties, the following issues were framed by the trial Court :- RSA No.2348 of 2009 (O&M) 5 “1.Whether the plaintiff is owner of the shop as detailed in para No.1 of the plaint and is entitled to the possession thereof? OPP 2.Whether the plaintiff is entitled to recover the mesne profit of Rs.25,000/- for use and occupation of shop unauthorizedly, since February, 2003 till date and also for future mesne profit?OPP 3.Whether the suit of the plaintiff is mala fide one?OPD 4. Whether the suit of the plaintiff is not properly valued for the purpose of court fee?OPD 5. Relief.” After hearing the learned counsel for the parties, I am of the opinion that the instant appeal is devoid of any merit. Plaintiff filed a suit for possession and for recovery of mesne profit on the basis of sale deed scribed on 23.1.2002 and registered on 24.1.2002. Defendant, on the other hand, took up the plea that the sale deed in question was a sham document. In fact, no consideration had passed between the parties at the time of execution of the sale deed. Learned counsel for the appellant has submitted that the sale deed had been executed by the appellant to save his property from his uncle. Appellant admitted his signatures on the sale deed Exhibit P2. As per the recital in the sale deed, the entire sale consideration had already been received by the vendor. In case, the appellant had not received the consideration, he should have raised the objection at the time of registration of the sale deed. Since the execution of the sale deed had been duly proved by the plaintiff, the Courts below had rightly decreed the suit of the plaintiff for possession of the land in dispute. There is no force in the argument RSA No.2348 of 2009 (O&M) 6 raised by the learned counsel for the appellant that the sale deed dated 23.1.2002 ( Exhibit P2) has been executed by the appellant to save the property from his uncle. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 13, 2009 arya