Bhopal Singh And Others vs Rambabu Singh And Others

Plaintiffs/ appellants have filed the present appeal being aggrieved by judgment and decree dated 01.01.2000 whereby the Second Additional District Judge, Neemuch has dismissed the suit for specific performance of contract, permanent injunction and possession.

Brief Facts...

Late Bhagwatibai was owner of a piece of land measuring 90x45 sqft. situated in village Visanya (hereinafter referred to as "the Suit land"). According to the plaintiffs, they purchased the aforesaid suit land from Bhagwatibai on 11.02.1991 in Rs.31,000/-. They paid the entire amount of sale and possession was obtained. An agreement was executed on the same day but, it was notarized on 13.02.1991. They are using the Suit land which is commonly known as BADA for keeping the agriculture goods and material. It was also agreed that in future if required they will get it registered a sale deed.

Later on, Bhagwatibai executed a power of attorney dated 04.04.1991 in favour of Kishanlal. On the basis of said power of attorney, Kishanlal sold the suit land to defendant nos.2 and 3 vide registered sale deed dated 29.04.1991. Now, on the basis of said sale deed, the defendants started dispossessing them from the suit property. Therefore, the cause of action has arose in their favour for filing the suit.

The defendant nos.1 and 4 filed the joint written statement denying the execution of deed dated 11.02.1991. Bhagwatibai has denied her thumb impression and the signatures of the witnesses in the deed dated 11.02.1991. Defendant nos.2 and 3 also filed the written statements denying the possession of the plaintiffs and according to them, they purchased the suit land from Kishanlal in Rs.45,000/- and obtained the possession. Thereafter, their names have been mutated in the record of Panchayat and the plaint is liable to be dismissed.

During pendency of the plaint, Bhagwatibai expired and her name was deleted from the plaint on 15..07.1996.

By order dated 24.04.1997, an application filed for temporary injunction under Order 39 Rule 1 and 2 of the CPC has been dismissed by the trial Court with a finding that the plaintiffs have failed to prove their possession over the suit property. In view of the aforesaid rejection of temporary injunction, the plaintiffs sought the relief of restoration of possession by way of amendment in plaint on 22.12.1997.

On the basis of pleading, the learned trial Court framed six issued for adjudication of the Suit.

The plaintiffs examined Bhopal Singh PW-1, Suresh Sharma Advocate PW-2 and in total 8 witnesses and got exhibited14 documents as Ex/P1 to Ex.P/14. The defendants examined Mohanlal DW/1, Ganesh Vyas DW/2 and Kishanlal DW/3 and exhibited three documents Ex.DW/1 to Ex.DW/3.

After appreciating the evidence came on record, the learned ADJ has held that the plaintiffs have failed to prove the execution of agreement to sale dated 11.02.1991 and their possession. The defendant nos.2 and 3 are bonafide purchaser and also in the possession, hence, they are not trying to interfere into the possession of plaintiffs. It has also held that the plaintiffs have failed to prove readiness and willingness to get the sale deed executed vide judgment and decree dated 01.01.2000 and dismissed the Suit vide judgment and decree dated 01.01.2000.

Being aggrieved by the aforesaid judgment and decree, the plaintiffs have filed the present first appeal before this Court.

At the very outset, Shri Himanshu Joshi, learned counsel appearing for the appellants submits that the appellants are not entitle for the relief of specific performance of contract due to death of Bhagwatibai. In this appeal, the plaintiffs are only pressing the relief of permanent injunction for protection of their possession. Defendants be directed not to dispossess them without following due process of law. He further submits that the plaintiffs have filed an application under Order 41 Rule 27 of the CPC for taking additional documents on record. He submits that the plaintiffs were prosecuted under Section 447 of IPC and vide judgment dated 08.12.2001, they have been acquitted by the JMFC with the finding that there are in possession over the suit property. Since, this finding came into the favour of the plaintiffs during pendency of this appeal, therefore, this judgment is having material effect and the same is liable to be considered in this appeal as additional evidence. The plaintiffs have also filed certified copies of deposition of the witnesses in criminal case.

These documents are certified copies of the court proceedings and the judgment and came into the possession of the plaintiffs after decision of the Civil Suit and during pendency of this appeal, therefore, there is no reason to disbelieve the certified copies of the documents obtained from the Court case. Hence, the same are taken on record an an additional evidence.

The only issue survives in this appeal is whether the plaintiffs have successfully proved their possession over the suit property and if yes, then only they would be entitled for relief of permanent injunction.

In para No.5 of the plaint, the plaintiffs have pleaded that in the evening of 11.02.1991, they have obtained the possession of the suit property. In agreement to sale Ex.P/7, it is mentioned that plaintiffs are in possession since last four years and in evidence also, plaintiff no.1 has in the court did not deposed that he was in possession prior to the execution of the deed dated 11.02.1991. The plaintiffs are claiming possession on the basis of agreement to sale dated 11.02.1991. There is contradictory statement of plaintiffs in plaint and in evidence. Bhagwatibai executed power of attorney in favour of defendant no.1 on 06.04.1991 and who sold the suit property to the defendant no.2 and 3 vide registered sale deed dated 29.04.1991. By order dated 22.04.1997, the learned ADJ has rejected the application for temporary injunction. The said order has attained finality. Thereafter, after the detailed evidence, the learned trial Court has recorded the finding that the plaintiffs have failed to prove their possession over the suit property. The suit has been dismissed in the year 2000 and this appeal is pending since 2001 and there is no injunction in this appeal also. Therefore, there is no injunction in favour of the plaintiffs since 1997 for protection of their possession over the suit property.

So far as the findings recorded by the learned JMFC in the criminal case are concerned, defendant no.2 Ramlal lodged an FIR against the plaintiffs that they forcibly trespassed in the suit property on 30.04.1991 i.e. immediately on the next day of execution of sale deed dated 29.04.1991 in is favour. The prosecution examined four witnesses and the plaintiffs examined three witnesses in defense. The learned Magistrate has examined the evidence on 08.12.2001 in respect of possession and by that time, the Additional District Judge in the Civil Suit, had already recorded the findings that the plaintiffs are not in possession over the suit property. The findings recorded by the criminal Court are not binding on the Civil Court. The learned JMFC fave the finding of possession of plaintiff over suit property after appreciated the oral evidence and same evidence was before the civil Court also. In the considered opinion of this Court, the learned ADJ has rightly appreciated the evidence on the point of possession of plaintiff over the suit property. The plaintiffs accepted the findings given in the order dated 24.04.1997 by which relief of temporary injunction was denied and thereafter, claimed the relief of possession. During pendency of this appeal also they did not file any application for temporary injunction it means they are not in possession since 29.04.1991. Further, the learned Magistrate while acquitting the applicants, has observed that the civil proceedings are pending between them, therefore, it cannot be said that they have been committed any offence of trespassed under Section 447 of the IPC. Except exhibit P/7 i.e. agreement to sale, the plaintiffs are not having any documentary evidence in respect of their possession. The Ex.P/7 could not be proved for want of registration.

In view of the above discussion the appeal is devoid of merit hence is here by dismissed. The judgment and decree dated 01.01.2000 whereby the Second Additional District Judge, Neemuch dismissed the suit is hereby upheld.

No order as to cost.