Regular Second Appeal No. 2179 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2179 of 2011 Date of decision : May 17, 2011 Gulab Singh and others ....Appellants versus Avtar Singh ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Vinod S. Bhardwaj, Advocate for Mr. Naveen S. Bhardwaj, Advocate, for the appellants L.N. Mittal, J. (Oral) Defendants who were successful in the trial court but have been unsuccessful in the lower appellate court have filed the instant second appeal. Respondent-plaintiff Avtar Singh filed suit against defendants/appellants for possession of the suit property. The plaintiff alleged that he along with other co-sharers is owner of the suit property which is Bara measuring 10 marlas comprised of khasra no. 606. The plaintiff constructed five rooms in the Bara. Defendants were engaged by the plaintiff as labourers. The plaintiff allowed the defendants to reside in Regular Second Appeal No. 2179 of 2011 -2- the said rooms being labourers of the plaintiff. The defendants worked as labourers of the plaintiff till March, 2006. However, even thereafter defendants did not vacate the suit property. Plaintiff terminated their licence by serving notice dated 25.5.2006. Accordingly, the plaintiff filed suit for possession of the suit property. Defendant no. 1 was proceeded ex parte. Defendants no. 2 to 6 contested the suit and inter alia, pleaded that the plaintiff's father was owner of the suit land and he agreed to sell the same to defendants' father vide agreement dated 24.6.1970 and possession was also delivered to defendants' father in the year 1970. Defendants' father raised construction in the suit land. After death of their father, defendants are residing there. The defendants denied having occupied the suit property as licencees of the plaintiff. Protection of section 53A of the Transfer of Property Act (in short, the TP Act) was also claimed by the defendants. Learned Civil Judge (Senior Division), Kaithal vide judgment and decree dated 3.11.2009 dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Kaithal vide judgment and decree dated 15.2.2011 and thereby plaintiff's suit stands decreed. Feeling aggrieved, the defendants have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Defendants' own pleadings and evidence are sufficient to decree the plaintiff's suit in addition to the plaintiff's pleadings and Regular Second Appeal No. 2179 of 2011 -3- evidence. Defendants pleaded that plaintiff's father agreed to sell suit plot to defendants' father vide agreement dated 24.6.1970. However, defendant produced agreement dated 24.6.1970 Ex. DW2/B allegedly executed by plaintiff's grandfather Dayal Singh and not by plaintiff's father Anup Singh. Moreover, according to the said agreement possession of the suit plot was not delivered to defendants' father. There is also no other documentary evidence to depict that the possession of the suit plot was ever delivered to defendants' father pursuant to the aforesaid agreement. Consequently, defendants are not entitled to protection of section 53A of the TP Act nor they are in possession of the suit property in part performance of the aforesaid agreement. On the contrary, even after the aforesaid agreement, the plaintiff and other co-sharers and their predecessors continued to be recorded to be owners as well as in possession of the suit land in the revenue record. It may also be added that the aforesaid agreement was for consideration of Rs 1500/- and under the agreement part consideration of Rs 800/- only was paid. Defendants or their father never sought specific performance of the aforesaid agreement dated 24.6.1970 whereas the instant suit was filed by the plaintiff on 8.8.2006 i.e. more than 36 years after the alleged agreement. There is also nothing on record to depict that defendants or their father always remained ready and willing to perform their part of the aforesaid agreement which is essential to seek protection under section 53A of the TP Act. Defendants have miserably failed to plead and prove this essential requirement for claiming benefit of section 53A of the TP Act. Thus, examined from any angle, defendants are not Regular Second Appeal No. 2179 of 2011 -4- entitled to aforesaid protection and therefore, plaintiff's suit for possession based on title has been rightly decreed by the lower appellate court. Defendants by their own pleadings have admitted that plaintiff's father was owner of the suit plot. Consequently, now the plaintiff along with other heirs are owners of the suit plot. Ownership of the said plot was never transferred to defendants or their father as there is no registered sale deed for the same. Consequently, since plaintiff and other co-sharers are owners of the suit property, plaintiff as co-sharer is entitled to possession of the suit property from the defendants who have no right, title or interest in the suit property. Learned counsel for the appellants contended that plaintiff pleaded that defendants were put in permissive possession of the suit property in the year 2000 when the defendants were allegedly engaged as labourers by the plaintiff whereas electricity connection in the suit property is in the name of defendants since the year 1996 and therefore, plaintiff's version is falsified. Reference was made to receipts Ex. D1 to D3 regarding payment of electricity consumption charges. These receipts are of the years 1996 and 1997. However, these receipts have not been linked with the suit property. No official from Haryana State Electricity Board was examined to depict that these receipts pertain to electricity connection installed in the suit property. Moreover, even if it be assumed for the sake of argument only that the aforesaid electricity connection stood installed in the suit property in the names of defendants since the year 1996 or prior to it, even then plaintiff's suit for possession of the suit property based on title Regular Second Appeal No. 2179 of 2011 -5- has to be decreed because defendants have no right to retain possession of the suit property or to continue in possession thereof. For the reasons aforesaid, I find no merit in the instant second appeal. Plaintiff's suit has been rightly decreed by the lower appellate court. The plaintiff's suit had to be decreed even in view of admitted position as pleaded by the defendants themselves. Consequently, finding recorded by the lower appellate court does not warrant interference in exercise of second appellate jurisdiction. The said finding is also not shown to be perverse or illegal in any manner nor it is based on misreading or misappreication of evidence. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) May 17, 2011 Judge 'dalbir'