Dasondhi Ram and Another vs Hand Raj

R.S. Pathak, C.J.—This is a Plaintiffs'' second appeal arising out of a suit for permanent injunction and damages.

The Plaintiffs alleged that Rati Ram, Prem Singh, Smt. Munni, Lila Vati and Sultan Singh were owners of a parcel of land situated in village Dudhla, that the land was sold by a registered sale deed dated February 8, 1968, to the Plaintiffs and they were put in possession of the land by the vendor, but that the Defendant was interfering with their possession and had trespassed on to the land and removing the paddy crops of the Plaintiffs. The Plaintiffs prayed for a permanent injunction restraining the Defendant from interfering with their possession in the land and also claimed damages in the sum of Rs. 200 in respect of the paddy crops.

The suit was resisted on the ground that the landowners, Rati Ram and others, had already transferred the land to the Defendant by an oral sale on June 18, 1967, for Rs. 1,800 and had put the Defendant in possession. It was also pleaded that a report of the oral sale had been made to the Patwari Halqa who recorded the same in the Register Roznamcha-Vakiyati. Mutation No. 75 was entered in respect of the oral sale, and the possession of the Defendant over the land was entered in the revenue papers in Kharif 1967. Subsequently, the Defendant says, he came to know that the land had been sold by the landowners to the Plaintiffs, and that on the basis of that sale the Plaintiffs had applied to the Revenue Assistant for cancellation of the Girdawari entries made in favour of the Defendant, that without notice to the Defendant the Revenue Assistant passed an order recording the Plaintiffs in possession of the land, and that on coming to know of the order the Defendant applied for restoration of the Girda-wari entries which application was pending decision. The allegation of the Plaintiffs that they were in possession of the land and he had trespassed on to the land and destroyed their crops was denied by the Defendant.

In replication the Plaintiffs pleaded that only Rati Ram and Prem Singh out of the original owners, had entered into an oral transaction sale with the Defendant, that they had received Rs. 1,000 as earnest money, and on the Defendant omitting to pay the balance of Rs. 800 they had refunded the money received to the Defendant and taken back possession of the land. It is also alleged that the landowners had cultivated the Rabi crop of 1968 and had later sold the crop along with the land to the Plaintiffs receiving Rs. 125 as compensation for the crops.

The trial court decreed the suit of the Plaintiffs, but an appeal by the Defendant has been allowed by the lower appellate Court. The lower appellate court has found that the oral sale was in fact effected by the landowners in favour of the Defendant, that the Defendant had been put in possession of the land and he had paid the entire sale consideration of Rs. 1,800 to the landowners, and consequently the subsequent sale deed in favour of the Plaintiffs was of no legal effect.

The case has been argued by Shri S. Malhotra for the Appellants with his usual diligence and fairness, and he has said all that could be said in favour of the Appellants but I am not satisfied that this appeal can succeed.. On an appraisal of the evidence on the record it is abundantly clear that Rati Ram and Prem Singh made an oral sale of the land on June 18, 1967, in favour of the Respondent. On that date, it is not disputed, the Transfer of Property Act did not apply and an oral sale of immovable property of a value exceeding Rs. 100 was valid. The evidence also discloses that the Respondent was put in possession of the land. That circumstance; taken along with the other evidence on the record, disproves the case of the Appellants that the Respondent had paid Rs. 1,000 only and had not paid the balance of Rs. 800. On the oral sale being effected, the Respondent informed the Patwari Halqa accordingly and consequently entries were made in the revenue record. When the subsequent sale deed dated February 8, 1968, was executed by the landowners in favour of the Plaintiffs, it is significant that the Girdawari entries made in favour of the Respondent were cancelled without notice to him. It is urged on behalf of the Appellants that the oral sale was effected by Rati Ram and Prem Singh, two only of the entire body of landowners, and therefore, was ineffective in law. The lower appellate court has however, referred to material on the record to show that all the landowners must be taken to have agreed to the oral sale, especially having regard to their conduct in the proceeding and to the relationship in which they stood to each other. The plea that the remaining landowners cannot be said to have admitted the oral sale does not have force, and the circumstance that this were not specifically put to them does not help the case of the Appellants.

Shri Mela Ram Vasisdeva, learned Counsel for the Respondent, has very ably presented the case of the Respondent and has vehimently supported the findings of the lower appellate court. His eloquent submissions leave me in no doubt about the correctness of the findings of the lower appellate court. He points out that the khasra girdawari are public documents and can properly be proved by the production of certified copies. He contends that they are admissible u/s 35 of the evidence Act. There can be no dispute with that proposition. It is supported by Mohammad Din v. Fateh Din and Ors. A.l.R. 1934 1 Lah. 698 , and Beant Singh Vs. Natha Singh, It is not necessary that the Patwari, who had prepared the "khasra girdawari should be produced. Reliance was placed in the court below by the present Respondent on the mutation entry, but it is urged for the Appellants that the mutation entry no evidence of title. That that is so is borne Out by Thakur Nirman Singh v. Thakur Lal Rudra Partab Narain Singh and Ors. AIR 1926 P.C. 100, In my opinion, even if the mutation entry is considered only for ''the purpose of establishing possession, that is sufficient to show that the Respondent was put in possession of the land by the landowners. As has been pointed out by the lower appellate court unless the entire sale consideration had been received by the landowners, they would not have parted with possession in favour of the Respondent.

It is next contended for the Appellants that the lower appellate court should have permitted the Plaintiffs to amend the plaint by including a relief for possession. Whether or not an amendment of the plaint should be allowed is a matter resting with the judicial discretion of the Court, and I am not satisfied that in refusing to allow the amendment the lower appellate court acted arbitrarily or perversely.

In the result the appeal fails and is dismissed with costs.