Chander Bhan and Another vs Khem Chand

V.K. Jhanji, J.—This is plaintiffs'' second appeal directed against the judgment and decree of the first appellate Court whereby on acceptance of appeal preferred by the defendant, judgment and decree of the trial Court has been set aside and suit of the plaintiff dismissed.

Plaintiffs (appellant herein) filed suit for joint possession in respect of half share in agricultural land measuring 35 Kanals 4 marlas situated in village Shamdo, Tehsil Rajpura, District Paliala. As per averments made in the plaint, Jiwan Dass was owner of the land in dispute, Jiwan Dass died in the year 1958 leaving behind son, Sunder Dass and the plaintiffs, Chander Bhan and Jagdish Chander, being sons of his pre-deceased son Niamat Rai. Sunder Dass representing himself to be the exclusive owner of the land, sold it to defendant, Khem Chand. Plaintiff alleged that Sunder Dass had no right to sell the entire land and the plaintiffs were owners of half share. Upon notice, suit was contested by defendant, Khem Chand. In his written statement, defendant Khem Chand, admitted that Jiwan Dass was owner of the land, but contended that on the death of Jiwan Dass, his son, Sunder Dass, had been conferred permanent rights by the Rehabilitation Department. Defendant further contended that during his life time, Jiwan Dass, original owner of land, agreed to sell 27 Bighas 12 Biswas agricultural land out of 41 bighas to Khem Chand and one Chhakan Lal. Defendant further alleged that by another agreement, Jiwan Dass agreed to sell the remaining land, i.e. 13 bighas 15 biswas to Chhakan Lal. Reference, in this regard was made to agreements to sell dated 22.12.1957 and 9.3.1958. Defendant also set up agreement dated 22.10.1964 alleged to have been entered into between him and Chhakan Lal in regard to purchase of land agreed to be sold by Jiwan Dass. Defendant further averred that since he was entitled to enforce agreement against the heirs of Jiwan Dass, Sunder Dass, one of the heirs of Jiwan Dass, sold the suit land to him in recognition of his legal right. Trial Court on appreciation of evidence on record found plaintiffs to be sons of Niamat Rai, a pre-deceased son of Jiwan Dass and held that plaintiffs succeeded to the estate of Jiwan Dass to the extent of half share with Sunder Dass having the other share. Sunder Dass was held not to be the exclusive owner and competent to alienate the suit land to the exclusion of the plaintiffs. Defendant, Khem Chand, was not found to be a bona-fide purchaser for consideration. Trial Court decreed the suit for joint possession in respect of half share of 35 kanals 4 marlas. On appeal by the defendant, learned District Judge, Patiala, vide judgment and decree dated 22.9.1979 allowed the appeal and dismissed the suit of plaintiffs. Vide judgment dated 7.4.1992, second appeal was allowed by a learned single judge of this Court. Against the said judgment, defendant preferred an appeal before the Hon''ble Supreme Court. Since in second appeal the defendant had not put in appearance, the judgment of the learned Single Judge was set aside by the Apex Court and the case remanded to this Court with a request to re-hear it after hearing the defendant. This is how the second appeal has been put up before me.

After hearing the learned counsel for the parties and going through the record. I am of the view that judgment and decree of the first appellate Court is not sustainable in law. Defendant while appearing as DW-5 though staled that Jiwan Dass executed agreements to sell suit land in his favour, but did not produce any original agreement of sale. What has been produced on record are only the entries contained in the register of petition-writer pertaining to agreements to sell dated 22.12.1957 and 9.3.1958. In my view, simply on production of entries contained in the register of petition-writer, presumption cannot be drawn that Jiwan Dass had executed agreements to sell dated 22.12.1957 ond 9.3.1958. In fact, agreements alleged to have been executed by Jiwan Dass in favour of defendant, Khem Chand, and Chhakan Lal have not been proved on record. Sale-deed dated 5.3.1965, Ex. D-5, executed by Sunder Dass in favour of defendant makes no reference to agreement to sell dated 22.12.1957 or 9.3.1958. Reference has been made only to one agreement dated 22.10.1964 to which Jiwan Dass was not a party. Out of total consideration of Rs. 4000/- for which sale deed was executed by Sunder Dass in favour of defendant, Khem Chand, a sum of Rs. 3896/- was received by Sunder Dass before the Sub-Registrar and another sum of Rs. 104/- at the time of execution of sale deed. In case sale-deed was in recognition of agreements of sale executed by Jiwan Dass, then where was the need for paying consideration by defendant, Khem Chand, and receipt of the same by Sunder Dass. It is, thus, clear that sale made by Sunder Dass in favour of defendant was not in recognition of agreements to sell dated 22.12.1957 and 9.3.1958. Otherwise, too, a contract for sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It does not of itself create any interest in or charge on such property. On the death of Jiwan Dass, property was inherited in equal share by Sunder Dass and plaintiff, Chander Bhan and Jagdish Chander. Sunder Dass alone had no right or title to the property beyond his share which he inherited from his father and so, without any authority from the plaintiffs, he was not competent to transfer the share of the plaintiffs in the suit land, to the defendant. The finding of the District Judge that sale-deed executed by Sunder Dass in favour of Khem Chand, defendant, was in recognition of agreement to sell executed by Jiwan Dass thus, cannot be sustained and consequently, the same is set aside.

Resultantly, the appeal is allowed, judgment and decree of District Judge is set aside and that of the trial Court restored. No costs.