Bhawani Parshad (Deceased) vs Bhuley and Others

N.K. Kapoor, J.—This is unsuccessful plaintiffs regular second appeal.

The dispute between the parties pertain to an area marked ABCD in plan, exhibit R-1, attached with the plaint. According to the plaintiff this property was owned by one Shri Parmeshwari Dass (now deceased) who sold it to the plaintiffs father (Shankar Lal) vide two sale deeds dated 5.5.1941 and 20.7.1941 (exhibits P-2 and P-3) for consideration of Rs. 99/- each. It is further case of the plaintiff that Bihari Lal, predecessor-in-interest of the defendant-the respondent was in possession of the property as tenant under Parmeshwari Dass vide rent note dated 1.3.1939, exhibit PW7/A, and after his death defendants became trespassers. It is further case of the plaintiff that on partition as per the civil Court decree the property has fallen to the share of the plaintiff. So, a suit for possession of property and recovery of mesne profits was filed.

Defendants resisted the claim of the plaintiff on the ground that suit is time barred, plaint has not properly been valued for the purposes of Court fee and jurisdiction and that the plaintiff has no locus standi to file the suit. It was further pleaded that the defendants and their predecessors are owners of the property.

The case in deed had a chequered history. Suit was dismissed on 3.12.1974 but in appeal the case was remanded to the trial Court for a fresh decision vide order dated 18.9.1975. This time suit was decreed vide judgment and decree dated 24.8.1976 and again the appellate Court accepted the appeal and remanded the case to the trial Court for a fresh decision after permitting the parties to lead evidence.

On the pleadings of the parties, the following issues were framed :-

(1) Whether the suit is properly valued for purposes of Court fee and jurisdiction?

(2) Whether the property in dispute was owned by Parmeshwari Dass, whether he sold the same to Shankar Lal and whether the plaintiff became owner of the suit property as a result of compromise with his father?

(3) Whether the defendants are the owners of the property in dispute?

(4) Whether the property in dispute was let out to Bihari, Ramsukh and Jai Sukh under the rent note dated 1.3.1939 for a period of 12 months and whether on the expiry of the said period of 12 months, the above persons became statutory tenants in that property?

(5) Whether the possession of the defendants is unauthorised, because they cannot succeed to any statutory tenancy alleged to be procured by Bihari, Ram Sukh and Jai Sukh?

(6) Whether the plaintiff is entitled to any damages on account of the use and occupation of the property by the defendants. If so, at what rate and to what effect?

(7) Whether the suit is instituted within the period of limitation allowed by law?

(8) Relief.

Trial Court after carefully considering the oral as well as documentary evidence decided the suit against the plaintiff i.e. the suit of the plaintiff was dismissed.

Before the appellate Court findings of the trial Court in respect of issues 2, 3 and 4 were challenged. The lower appellate Court on re-appraising the evidence found no ground to differ with the conclusion arrived at by the trial Court and so dismissed the appeal.

Challenging the concurrent findings of the Courts below, the learned counsel for the appellant has argued that the approach of the Courts below is per se erroneous which has resulted in passing of the impugned judgments/decrees. According to the counsel, the Court has infact set up an entirely a new case for the defendants the respondents by holding that there is no proof on record that Parmeshwari Dass from whom the father of the plaintiff had purchased the property in dispute in the year 1941 has not been proved to be the owner of the property. According to the counsel, since this precise objection had not been taken by the defendants no such case could be set up by the Courts. Otherwise too, the two sale deeds executed by Parmeshwari Dass clearly prove the ownership of the plaintiff and in the absence of any other evidence in favour of the defendants-the respondents the Courts ought to have decreed the suit.

Having heard the learned counsel for the appellant, I find the submissions made by him devoid of any substance. It is the case of the plaintiff that Parmeshwari Dass who is stated to be the owner of the suit property sold it to the plaintiffs father Shankar Lal vide two sale deeds dated 5.5.1941 and 20.7.1941 (exhibits P-2 and P-3) for a consideration of Rs. 99/- each and so the plaintiff has come into the foot steps of the erstwhile owner. Whether Parmeshwari Dass had any right or title in the property in dispute is the core question to be determined before it is held that plaintiff has a right to maintain the suit against the defendants. It is precisely for this reason that the Courts below non-suited the plaintiff. Even if one closely examines the copies of sale deeds, Exhibits P-2 and P-3, these too refer to a sale deed alleged to have been registered on 19.12.1921 in favour of Parmeshwari Dass i.e. Parmeshwari Dass is reported to have become owner of the property on the basis of sale deed executed in his favour on 19.12.1921. As per recital in exhibits P-2 and P-3 sale deed in favour of Parmeshwari Dass was by registered document. For reasons best known to the plaintiff copy of the sale deed dated 19.12.1921 has not been placed on record. Infact the lower appellate Court has observed that whereas case had been remanded twice and fair opportunity had been granted to the parties the plaintiff failed to adduce the copy of sale deed dated 19.12.1921. It is in these circumstances that the Court held that Parmeshwari Dass had no title to the property. It being so, the plaintiff, who claim himself to have succeeded to the rights, if any, of Parmeshwari Dass has thus no claim to seek possession of the property as he has failed to prove the ownership of his predecessors-in-interest-Parmeshwari Dass.

Thus, finding no merit in this appeal, the same is dismissed.