Gurdial Singh vs Tirath Ram and Others

Kuldip Singh, J.—The appellant was plaintiff and is aggrieved against the judgment, decree dated 30. 11.1999 passed by the learned District Judge, Una in civil appeal No. 47 of 1993 affirming the judgment, decree dated 29.1.1993 passed by learned Senior Sub Judge, Una in civil suit No. 121 of 1986. The respondents No. 1, 2 were defendants 1, 4 respectively.

The facts, in brief, are that appellant had filed a suit for permanent prohibitory injunction as well as mandatory injunction against respondents and two other persons, namely, Bal Krishan Kailash and Jasbir Singh. The further case of the appellant is that land measuring 2 Kanals, 5 Marlas, more specifically detailed in the plaint, was in possession of the father of appellant and after his death, appellant and his real brother Swaran Singh are in possession as tenant at will. The appellant and Swaran Singh became owners of the suit land after coming into force the H.P. Tenancy and Land Reforms Act, 1972. The respondents and two aforesaid persons Bal Krishan Kailash and Jasbir Singh threatened to raise construction over the suit land and, therefore, suit was filed.

The suit was contested by respondents by filing written statements. Bal Krishan Kailash and Jasbir Singh were proceeded exparte. The respondent No. 1 has denied the case of the appellant and has pleaded that appellant and his brother had received Rs. 4,000/- as sale consideration for the land measuring 1 Kanal, situated to the southern side of the abadi of respondents about 13 years ago and appellant had transferred the possession in favour of respondent No. 1. The sale was oral. The respondent No. 1 is owner to the extent of 1 Kanal of land.

The respondent No. 2 also contested the claim of the appellant. She has pleaded that appellant and his brother had received Rs. 2,000/- on 29.3.1979 as sale consideration for the land measuring 10 Marlas adjacent to the land of Smt. Shakuntala Devi. The respondent No. 2 has succeeded to 10 Marlas of land after the death of Smt. Shakuntala Devi. The respondent No. 2 is owner-in-possession of 10 Marlas of land. The vendors agreed to execute the sale deed, but they failed to do so. In these circumstances, respondent No. 2 has prayed for dismissal of the suit.

The appellant filed replications to the written statements of respondents No. 1 and 2 and reasserted his case.

On the pleadings of parties, following issues were framed.

Whether the plaintiff is entitled to the relief of permanent injunction? OPP

Whether the plaintiff had agreed to sell a portion of the suit land in favour of defendants No. 1 and 4 and had handed over possession thereof to these defendants as alleged? If so, with what effect? OPD

Both the issues were answered in affirmative and the suit was decreed on 29.1.1993. The learned District Judge on 30.11.1999 dismissed the appeal, hence second appeal, which has been admitted on following substantial questions of law:

Whether the court was right in holding the plea of oral sale, which was not pleaded or even argued by the defendant No. 4?

Whether the oral sale was permissible in Una District in the year 1979?

I have heard the learned Counsel for the appellant as well as learned Counsel appearing on behalf of respondents. It has been submitted on behalf of appellant that the two courts below have erred in not restraining respondent No. 2 from interfering in the possession of the appellant. The courts below have also erred in not ordering mandatory injunction against respondent No. 2. The courts below have erred in giving declaration in favour of respondents that they are co-owners in joint possession with appellant. It has also been submitted that the respondents had not filed any counter claim. The learned Counsel for the respondents have submitted that two courts below have recorded a concurrent finding of fact. The impugned judgment, decree are in accordance with law and no fault can be found with the view taken by two courts below.

The substantial questions of law referred to above, can be conveniently dealt with collectively. Therefore, both substantial questions of law are taken up together for determination. The short question for determination is that respondent No. 2 has taken the plea that she has purchased the land measuring 10 Marlas from Swaran Singh brother of appellant vide Ext DW-4/A. Later on she confined her claim to only 2 Marlas. The learned Senior Sub Judge has recorded a finding that oral sale at the relevant time was permissible but he has not supported his reasoning as to under what provision the oral sale was permissible at the relevant time.

The stand of respondent No. 4 is that the land was purchased on 29.3.1979 for a consideration of Rs. 2,000/-. Section 54 of the Transfer of Property Act provides that transfer of immovable property of value of Rs. 100/- and upwards can be made only by registered instrument. The respondents could not point out on 29.3.1979 oral sale of immovable property worth Rs. 2,000/- was permissible. The learned District Judge has recorded a finding that the ownership would not transfer to the vendee so long the registered sale deed is not executed. In these circumstances, the view taken by learned Senior Sub Judge that oral sale was permissible on 29.3.1979 is not sustainable.

The learned Senior Sub Judge in the operative part of the judgment dated 29.1.1993 has held that respondents No. 1, 2 are held to be co-owners in joint possession with the appellant. The learned District Judge while considering the ownership on the basis of document Ext.DW-4/A has held that so long the sale deed is not registered, the same cannot be looked into for the purposes of ownership. But the learned District Judge ultimately upheld the judgment, decree passed by the learned trial court. In other words, learned District Judge in conflict with his findings that so long sale deed is not registered, the same cannot be looked into upheld that respondents No. 1, 2 are co-owners in joint possession with the appellant.

The two courts below have recorded a finding of fact that respondent No. 2 is in possession of 2 Marlas of land. The appellant had already given up his claim against respondent No. 1 as has been recorded in the judgment dated 29.1.1993. The respondent No. 2 on the basis of alleged oral sale dated 29.3.1979 cannot acquire title on 2 Marlas of land. It is different matter that respondent No. 2 has been permitted by Swaran Singh co-sharer to stay on aforesaid 2 Marlas land and on the basis of that permission respondent No. 2 is in possession of aforesaid 2 Marlas land. Swaran Singh has not revoked the permission, which he has granted in favour of respondent No. 2. The substantial questions of law No. 1 and 2 are decided in favour of appellant, but since respondent No. 2 is in possession of aforesaid 2 Marlas land with the permission of Swaran Singh co-sharer, she cannot be injuncted, the suit of the appellant for permanent and mandatory injunction against respondent No. 2 is not maintainable. The appellant has already given up his claim against respondent No. 1. The impugned judgment, decree to the extent of declaring respondents No. 1 and 2 as co-sharers alongwith appellant are set aside and with these observations, the appeal is disposed of in terms of findings recorded above. No costs.