Savitri Devi and Others vs Prem Kumari

S.S. Sudhalkar, J.—Heard the counsel for the appellants.

The appellants were defendants in a civil suit before the trial court filed by the respondent. The civil suit was decreed. Appeal filed by the appellants was dismissed and this is a second appeal by the defendants before this court. The case of the respondent is that the suit property was permitted to be used by defendant Sukhbir Singh and when she asked Sukhbir Singh to vacate the house, he refused to do so. According to the respondent, Sukhbir Singh had refused to deliver possession on the pretext that he purchased the house for a consideration of Rs. 20,000/- from the respondents. It is contention of the respondent that she never executed an agreement to sell for Rs. 20,000/-.

In the written statement, which was read over to me, Sukhbir Singh and not taken up any contention that he is the owner of the suit property, it seems that the trend of Sukhbir Singh was to deny the ownership of the respondent.

Now on questioning, learned counsel for the appellants has stated that the respondent is the owner of the property and the ownership cannot be denied. It is also clear from the application for additional evidence and the amendment of the written statement, which was filed before the lower appellate court that the new contention of agreement to sell executed by Prem Kumari in favour of Sukhbir Singh has been taken.

The applications were rejected by the lower appellate court.

The question now is whether the appellants having admitted the respondent to be the owner of the property can contest the suit for possession. If a defendant has a right in the property such a tenancy right etc., the defendant can contest the suit for possession basing their claim for such a right. However, if the defendant does not have such right and if the title of the plaintiff is either admitted or proved, then the decree for possession has to follow. In the present case also, defendant Sukhbir Singh did not show that he had any specific right for possession of the property. Now the appellants are coming with a case that there was an agreement to sell. If there was specific right emerging from the agreement to sell, then there was nothing wrong for Sukhbir Singh to have taken such a plea in the written statement. The lower appellate court has rejected the application for additional evidence and amendment of the written statement in view of the original pleadings. The orders of the lower appellate court do not appear to be wrong. When this is the position, finding of the courts below cannot be disturbed. This appeal is without merit and is dismissed.