Balbir Singh vs Shiv Nath (dead through LRs.) and Others

Surjit Singh, J.—The present appeal by Balbir Singh (plaintiff) is directed against the judgment and decree dated 1.4.1998 of learned Additional District Judge, whereby his appeal against the judgment and decree, dated 28.8.1995, of the trial Court, partly dismissing his suit, has been upheld by the learned Additional District Judge.

Plaintiff filed a suit for specific performance of agreement, executed in his favour on 28.6.1976, by predecessor-in-interest of respondents No. 1(a) to 1(f), and respondents Nos. 2 and 3, for the sale of 2 Bighas 19 Biswas land, described in the plaint, alleging that predecessors-in-interest of respondents No. 1(a) to 1(f) and respondents Nos. 2 and 3, hereinafter referred to as defendants Nos. 1 to 3, were the owners of the suit land and they agreed to sell the same to the plaintiff through a written agreement, dated 28.6.1976, and put the plaintiff in possession, but thereafter they did not execute the sale deed. It was stated that at the time, when agreement was executed, plaintiff was given to understand that defendants Nos. 1 to 3 were the sole owners of the suit land, but later on defendants Nos. 4 and 5 (impleaded as respondents Nos. 4 and 5 in this appeal) also started claiming themselves to be joint owners with defendants Nos. 1 to 3. According to the plaintiff, defendants Nos. 4 and 5 were in collusion with defendants Nos. 1 to 3 and, therefore, they had set up the plea of joint ownership. It was further stated that defendants Nos. 4 and 5 were bound by the agreement, as the possession of the land was with defendants Nos. 1 to 3, when the agreement was executed. Plea of adverse possession was also taken against defendants Nos. 4 and 5.

Defendants Nos. 1 to 3 admitted the execution of agreement, but pleaded that the suit property was evacuee property, which had been allotted to their father Nand Lal, in lieu of his property which he left in Pakistan, on partition of the country. They stated that on the death of their father, they and respondents Nos. 4 and 5 inherited his estate and, therefore, respondents Nos. 4 and 5 are joint owners with them. Counter claim was also filed by respondents Nos. 4 and 4, seeking a decree of joint possession to the extent of 2/5th share in the suit property.

Trial Court framed various issues, based on the pleadings of the parties. At the end of the trial, it partly decreed the suit of the appellant-plaintiff to the extent of share of defendants Nos. 1 to 3, by whom agreement had been executed, and dismissed the same qua remaining 2/5th share, belonging to respondents Nos. 4 and 5. Trial Court also decreed the counter claim of respondents Nos. 4 and 5.

Appeal carried by the plaintiff to the Court of District Judge, stands dismissed.

This appeal was admitted on the following substantial questions of law:

Whether Nand Lal, predecessor of respondents was allottee of the suit land or respondents Nos. 1 to 3 who only paid the auction amount are the allottees of the suit land?

Whether respondents Nos. 1 to 3 were real owners of their own shares and ostensible of the shares of respondents 4, 5 in the suit and, therefore, respondents 4, 5 are bound by the agreement dated 28.6.76?

Whether appellant has become owner by way of adverse possession of the shares of respondents 4, 5 in the suit land?

I have heard Leaned Counsel for the parties and gone through the record.

Order of allotment of suit land was passed by the concerned Naib Tehsildar in favour of Nand Lal, father of the respondents. That order is available on the record of the trial Court, though not exhibited. However, it appears that when Patta was granted, Nand Lal was no more and, so, it was granted I favour of all the five respondents and their mother Nanki Devi. Patta is Ext. P-25. On the basis of this Patta, mutation was also entered and attested in favour of all the five respondents and their mother Nanki Devi. Mutation order is Ext. P-25. When Nanki Devi, mother of the respondents died, mutation Ext. P-23 was entered and attested in favour of all the respondents. That means, all the respondents are joint owners, as per Patta and mutation orders, to the extent of 1/5th share each.

Agreement Ext. P-1 was executed in favour of plaintiff by respondents-defendants Nos. 1 to 3 only. They agreed to sell the entire suit land for a consideration of Rs. 3000/ -. They received a sum of Rs. 2000/ -, as earnest money. Rest of the money was agreed to be paid at the time of execution of the sale deed, which has yet not been executed. Agreement is Ext. P-1 and receipt, regarding earnest money of Rs. 2000/- is Ext. P-2.

Above discussed evidence conclusively proves that the suit land was allotted to the father of the respondents and because of his death before issuance of Patta (certificate of allotment), the Patta was granted in favour of all the respondents and their mother Nanki Devi. So, it cannot be said that respondents Nos. 1 to 3 were the owners of the exclusion of respondents Nos. 4 and 5, even if it be assumed that the money for allotment of land had been paid by them. Consequently, substantial question of law No. 1 is answered against the appellant.

Admittedly, respondents Nos. 4 and 5 had not been taken into confidence at the time of execution of the agreement nor did they consent to the sale of their share, even subsequently. So, the agreement does not bind them.

Plea that respondents Nos. 1 to 3 were ostensible owners, qua shares of defendants Nos. 4 and 5, as incorporated in substantial question of law No. 2, cannot be accepted because no such plea had been raised in the plaint. Hence, substantial question of law No. 2 is also answered against the appellant-plaintiff.

Coming to substantial question of law No. 3, appellant-plaintiff has simply stepped into the shoes of defendants Nos. 1 to 3, who were the co-sharers. Therefore, their possession is no better than that of a co-sharer. They did not take the plea of ouster to claim adverse possession qua the share of respondents Nos. 4 and 5. Thus they cannot be said to have even raised the plea of acquisition of title by adverse possession, leave alone to proving it. So, substantial question of law No. 3 is also answered against the plaintiff-appellant.

In view of the above findings, appeal is dismissed.