Virsha Singh and Others vs Ajit Singh

Hemant Gupta, J.—The defendants are in second appeal aggrieved against the judgment and decree passed by the learned Courts below arising out of a suit for possession in respect of site in dispute along with Kotha constructed on it situated within the abadi of the village.

The plaintiff filed the aforesaid suit for possession on the ground that only agricultural land was sold to the defendants vide registered sale deed dated 17.06.1995, Exhibit D-1, but the defendants have taken possession of the residential house consisting of one Kotha situated in village Abadi as well. Since the said construction was not sold to the defendants, the plaintiff was entitled to the possession of the same. Both the Courts below decreed the suit holding that the said construction was not sold to the defendants vide sale deed Exhibit D-1. Earlier, this appeal was dismissed by the Court but the matter has been remitted for fresh decision by the Hon''ble Supreme Court.

I have heard learned Counsel for the appellant on the following substantial question of law:

Whether the judgment and decree of the Courts below are vitiated being based upon misreading of document i.e., sale deed dated 17.06.1975, Exhibit D-1?

As per plaintiff, he has sold his agricultural land to the defendants and after selling the same, he purchased agricultural land in village Sherpur. The residential house as described in the heading of the plaint was never sold.

In the written statement, it was categorical stand of the defendants that the plaintiff sold his agricultural land, tubewell, abadi bara, roori and suit property along with Malba or the Kotha situated in abadi therein to the defendants vide sale deed dated 17.06.1975.

In evidence, plaintiff appeared as PW1 as his own witness and deposed that he has sold only 1/2 of his agricultural land to the defendants and the remaining land is with him. He deposed that the house in question was under his lock and key but the defendants forcibly occupied the house about one year back. He admits in the cross-examination that the suit property consists of only one room and that he had not made any complaint to any higher authority regarding forcible possession of the defendants. It is admitted that the house in dispute was constructed in shamlat land which is within the abadi of the village. He denied the suggestion that the Kotha in dispute in the shape of Malba was sold to the defendants. PW2 is Amrit Lal, Draftsman, who was proved the site plan Exhibit P-2, PW3 Bhupinder Singh is scribe of the sale deed Exhibit D-1. Defendant Desa Singh appeared as DW1. He has deposed that he has purchased the land, bara tubewell along with Kotha and the Malba of the house in dispute and the house was on shamlat land. The house in dispute was in dilapidated condition and after sale, no property of the plaintiff was left in the village. He denied the suggestion that the house in question was forcibly occupied by the defendants. DW2 Gurbux Singh is the attesting witness of the sale deed who has deposed that the defendants are in possession of the house in dispute since the date it was sold by the plaintiff to the defendants and no property was left with the plaintiff after the execution of the sale deed, Exhibit D-l. He admits that there is Kotha of the tubewell also. The kotha of tubewell and Malba in the Abadi was sold. DW3 Piara Singh deposed that his son was Sarpanch of the Gram Panchayat and the plaintiff was member of the same Gram Sabha. After selling the whole property, the plaintiff migrated to other village in Haryana and that the site on which the house in dispute was situated is shamlat deh. The house in dispute is a residential house situated within the abadi of the village.

The learned trial Court decreed the suit on the ground that the house in dispute did not find mention anywhere in the sale deed, therefore, it cannot be held that the suit property was sold by the plaintiff to the defendants. The learned Appellate court affirmed the finding for the same reason.

Since the primary dispute pertains to the recital in the sale deed, it would be appropriate to reproduce the relevant translated extract from the sale deed. It reads as under:

That I have sold agricultural land situated in village Devi Nagar, Tehsil Rajpura, which is owned and possessed by me vide jamabandi for the year 1972-73 bearing Khewat and Khatauni No. 5/26 comprising Khasra No. 259 measuring 3 Bighas Kita one to the extent of 1/8th share measuring 7 Biswas and land bearing Khewat and Khatauni No. 11/37 comprising Khasra No. 267 (3 Bighas - 11 Biswas), 267/1 (1 Bigha-9 Biswas) Kita 2 measuring 4 Bighas 19 Biswas to one extent of 1/6th share measuring 17 Biswas and land bearing Khewat and Khatauni No. 15/49, 50 comprising Khasra Nos. 191 (4 Bighas 0 Biswas), 196 (4 Bighas-0 Biswas), 197 (4 Bighas - 0 Biswas), 193 (4 Bighas - 0 Biswas), 711/201 min (0 Bigha - 19 Biswas), 202 (4 Bighas-0 Biswas), 243 (4 Bighas-0 Biswas), 244 (4 Bighas-0 Biswas), 709/199 (3 Bighas-1 Biswas), 192 (4 Bighas-0 Biswas), 198(4 Bighas-0 Biswas, 711/201 (2 Bighas-0 Biswas), 242 (4 Bighas - 0 Biswas), 195 (4 Bighas - 0 Biswas) Kita 13 land measuring 50 Bighas to the extent of 1/4 share measuring 12 Bighas 10 Biswas total land of all Khewat measuring 13 Bighas 14 Biswas assessed to land Revenue as mentioned in Revenue Record alongwith all rights appurtenant thereto along with 1/4th share in tubewell in running condition with electric motor of 7-1/2 Horse Power, Starter, Pipes, Fan, Bore and Kotha etc., along with 1/4th share in trees standing in the land, along with share in Shamlat Deh and Abadi, Ruri, Bara meaning thereby that all rights, which I possess in respect of the land also Malba of Kotha etc. (emphasis supplied) of my own accord and in complete senses without any pressure of any kind for domestic needs in favour of Sarv Shri Virsa Singh, Desa Singh and Darshan Singh sons of Sh. Mangal Singh s/o Bhag Singh, residents of village Devi Nagar, Tehsil Rajpura, in equal shares of all three for a sum of Rs. 18,000/-....

A perusal of the above recital of the sale deed, particularly in italics, would show that the sale is in respect of tubewell in running condition with electric motor, Starter, Pipes, Fan, Bore and Kotha along with 1/4th share in trees standing in the land, along with the share in Shamlat Deh and Abadi Ruri and in respect of Malba of Kotha etc. Therefore, not only Kotha of tubewell but Kotha which is situated in Abadi along with share in shamlat deh was sold to the defendants. The plaintiff has left the village after the sale which is a strong indicative of the fact that he was left with no interest in the village. The plaintiff purchased land in village Sherpur in District Ambala. Though the plaintiff has deposed that he has sold his 1/2 share in the agricultural land but that was not the case set up in the plaint. He has pleaded that "plaintiff has sold his agricultural land" meaning thereby that entire agricultural land was sold. Still further, the recital in the sale deed does not show that the sale was of 1/2 of his share. The sale was of entire share of the plaintiff and the defendants were put in possession of the land so sold.

The argument of learned Counsel for the respondent that the sale deed does not give any dimension of the residential house is indicative of the fact that the residential house was not sold. The said argument is based upon surmises and conjectures. No doubt, it is correct that dimensions of the house have not been given in the sale deed but the recitals in the sale deed are indicative of the fact that the share in the shamlat deh abadi and Bara have been sold to the defendant. Therefore, mere omission to mention the dimension of the house would not be sufficient to return a finding that the same was not sold to the defendant.

Thus, the finding recorded that residential house situated in Abadi was not sold to the defendants is based on misreading of the document. It is the plaintiff alone who has deposed that the has not sold the residential house. On behalf of the defendants, one of the attesting witnesses and another person who was known to the parties have deposed that the defendants have purchased the house and the possession was delivered by the plaintiff at the time of sale itself.

Thus, I am of the opinion that the finding recorded by the Courts below that the plaintiff has not sold the site along with the Kotha thereon is based upon misreading of a document and, thus, cannot be sustained in law.

Consequently, present appeal is allowed and the judgment and decree passed by the learned Courts below are set aside. The suit is dismissed with no order as to costs.