Bhupinder Singh vs Rana Kamarpal Singh

Sarojnei Saksena, J.—By this order Civil Revision Nos. 4296 and 4297 of 1995 are decided as common facts are involved in both the cases.

Brief facts of the case are that petitioner-Bhupinder Singh filed Civil Suit No. 177 of 1994 against Rana Kamarpal Singh for permanent injunction praying that the defendant be restrained from interfering into his lawful and peaceful possession of the disputed land measuring 4 Kanals 17 Marias (referred to as suit land) as described in the plaint itself. He alleged that he through his maternal uncle and Manager Rajpal purchased the suit land from Jang Bahadur Singh and Achhar Singh for Rs. 36,500/- vide registered sale deed dated April 5, 1994. Possession of the suit land was delivered to him on that very day. Mutation is also sanctioned in his favour. His vendors were in exclusive possession of the suit land at the spot as co-owners/co-sharers irrespective of the wrong revenue entries contrary to it. The defendant started threatening to forcibly dispossess him. Hence he filed this suit and also filed petition under Order 39 Rules 1 and 2 read with Section 151 CPC for granting ad interim injunction to that effect.

In that suit the defendant filed his written statement and raised certain preliminary objections. He averred that even if the said sale deed is proved it is executed as a result of collusion between the plaintiff or Rajpal and Jang Bahadur Singh and Achhar Singh and it does not affect his rights in the suit land. Rajpal has no authority to file the present suit on behalf of the plaintiff. Even the mutation does not affect his rights. According to him, Jang Bahadur Singh, Achhar Singh and their brother Malkhan Singh entered into an agreement of sale on June 2, 1992, in his favour, in respect of land measuring 7 Kanals 6 Marias out of 19 Kanals 7 Marias for a consideration of Rs. 50,000/- per acre. He paid Rs. 40,000/- as earnest money and possession of the suit land was delivered to him on that very day. The remaining sale price was to be paid at the time of the execution of the sale deed. Since the date of this agreement, he is in peaceful possession of the suit land. The plaintiff alleges that he purchased the suit land on April 5, 1994 and possession of the suit land delivered to him, but his vendors were not in possession of the suit land on April 5, 1994, as this land was in his possession from June 2, 1992. Hence the prayer was denied.

The trial Court considered the allegations as well as the documents filed by the parties and came to the conclusion that not only in the sale deed executed in favour of the plaintiff there is a recital that possession of the suit land is delivered to the purchaser but also mutation was effected in his favour and in the copy of Jamabandi in remark column there is an entry in respect of this sale in favour of plaintiff Bhupinder Singh. It also observed that simply agreement of sale of Immovable property does not by itself create any interest in or charge on any property and the defendant''s right, if at all he has any in the suit land shall arise after decree of specific performance of the agreement to sell dated June 2, 1992, is passed in his favour and it is executed. The trial Court also observed that the defendant could not show that plaintiff Bhupinder Singh had notice of this alleged agreement of sale at the time when the sale deed was executed in his favour. Jang Bahadur Singh and Achhar Singh in their affidavits have supported the plaintiff''s claim. Thus, the order of ad interim injunction dated May 17, 1994 was confirmed by Order dated August 24, 1994.

Defendant - Rana Kamarpal Singh preferred an appeal against that order, which was decided on September 11, 1995. The lower appellate Court held that the agreement of sale was executed by plaintiff''s vendors along with their brother Malkhan Singh in favour of the defendant on June 2, 1992, when he paid Rs. 40,000/as earnest money and on that very day they delivered possession of the suit land to the defendant. Thus, the defendant is in actual physical possession of the suit land. He has already filed a separate suit for specific performance of this agreement. Thus, it is obvious that on the date of sale alleged to have been executed in favour of the plaintiff on April 5, 1994, these vendors were not in possession of the disputed land. Therefore, delivery of possession of the suit land to the plaintiff is out of question. The lower appellate Court also observed that after the said agreement, the plaintiff''s vendors could not have sold 7 Kanals 6 Marias, which was more than their share in the joint Khata. It further observed that the sale deed is invented as a device by Achhar Singh, Jang Bahadur Singh and Malkhan Singh to refuse the specific performance of the agreement in favour of the defendant. On these findings, the trial Court''s order was set aside.

Kanwarpal Singh filed Civil Suit No. 185 of 1994 against Malkhan Singh, Jang Bahadur Singh, Achhar Singh and Bhupinder Singh for specific performance of agreement dated June 2, 1992, and also prayed that the defendants be restrained from interfering in his possession of the suit land i.e. 7 Kanals 6 Marias. He pleaded that he entered into this agreement for a total consideration of Rs. 50,000/- per acre., He paid Rs. 40,000/-as earnest money, which was duly received by Malkhan Singh, Jang Bahadur Singh and Achhar Singh on that day, they delivered possession of the suit land to him. Since then he is in its continuous possession. In the alternative, he also prayed for the recovery of Rs. 80,000/- i.e. Rs. 40,000/- earnest money plus Rs. 40,000/- as damages. He also filed a petition under Order 39 Rules 1 and 2 read with section 151 CPC.

Defendants 1 to 3 filed their joint written statement and denied the execution of the said agreement. They also denied that they have received Rs. 40,000/- as earnest money from plaintiff-Kanwarpal Singh or that they have delivered possession of the suit land to him in part performance of the said agreement. According to them, defendants 2 and 3 were co-sharers/owners in possession of the land measuring 4 Kanals 17 Marias. They sold this land to defendant No. 4 Bhupinder Singh for a consideration of-Rs. 36,500/- vide registered sale deed dated April 5, 1994, and on that very day they put defendant-Bhupinder Singh in possession of the sold land. Remaining land out of the suit land is still owned and possessed by defendant No. 1. Their specific plea is that these defendants mortgaged their land measuring 7 Kanals 6 Marias in favour of the plaintiff on June 2, 1992, in the presence of marginal witnesses. The plaintiff has managed to falsely prepare the alleged agreement of sale dated June 2, 1992, thus it is a bogus document. Other allegations were also controverted.

Defendant No. 4 Bhupinder Singh alleged that he has purchased the suit land from Jang Bahadur Singh and Achhar Singh vide registered sale deed dated April 5, 1994, for a consideration of Rs. 36,500/- and on that very day possession of the suit land was delivered to him. He also averred that the alleged agreement of sale was a loan transaction. It is inadmissible in evidence on account of additions and material alterations made therein. Thus, the claim was denied.

After hearing both the parties and considering the copy of Jamabandi the trial Court came to the same conclusions to which it arrived at while deciding injunction petition filed by Bhupinder Singh in Civil Suit No. 177 of 1994 and thus the injunction petition filed by Kanwarpal Singh was rejected. Ad interim injunction orders passed in favour of Plaintiff Kanwarpal Singh were also vacated.

Plaintiff-Kanwarpal Singh preferred an appeal against that order, which was allowed by the lower appellate Court vide its order dated September 11, 1995. In this order also the lower appellate Court has arrived at the same findings which it arrived while deciding Civil Appeal No. 65 of 1994.

Against both these orders of the lower appellate Court, the aforementioned revisions are filed. These facts are common in both the cases.

The petitioner''s learned counsel, relying on Guru Nanak Education Trust (Registered) and Ors. v. Sh. Balbir Singh and Ors. 1995 P.L.J. 207, contended that the lower appellate Court should not have interfered with the discretion exercised by the trial Court and should not have substituted its own discretion. The lower appellate Court is not justified in such an interference unless if finds that the trial Court has acted arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all relevant records. According to him, mere possibility of the lower appellate Court coming to a different conclusion on same facts and evidence does not justify such an interference.

Adverting to the facts of the case the petitioner''s learned counsel contended that in the sale deed executed in favour of plaintiff-Bhupinder Singh there is no mention of the agreement alleged to have been executed in favour of Kanwarpal Singh by Malkhan Singh, Jang Bahadur Singh and Achhar Singh. These defendants have denied the execution of the agreement of sale. According to them it was a loan transaction and just to put pressure on them by making alterations in the said document, defendant Kanwarpal Singh has made it a document of agreement of sale. The vendors of plaintiff-Bhupinder Singh have supported Bhupinder Singh''s claim by filing their affidavits. They have also stated that possession of the disputed land was delivered to Bhupinder Singh on the date of the execution of the sale deed i.e. April 5, 1994. The plaintiff-Bhupinder Singh had no knowledge that his vendors along with their brother have entered into any such agreement with defendant-Kanwarpal Singh for the sale of suit land on June 2, 1992. Thus, according to him, he is a purchaser for consideration with no knowledge of the earlier agreement. Therefore, the trial Court has rightly passed injunction order in his favour and has rejected the injunction petition filed by Kanwarpal Singh, but the lower appellate Court fell into an error in reversing both the orders.

Learned Counsel for respondent-Kanwarpal Singh vehemently argued that the execution of this sale deed is a trick devised by Jang Bahadur Singh and Achhar Singh to deprive respondent-Kanwarpal Singh from obtaining a decree of specific performance of contract on the basis of the agreement dated June 2, 1992. When these vendors along with their brother executed the agreement of sale on June 2, 1992 in favour of Kanwarpal Singh, received Rs. 40,0Q0/- as earnest money and delivered possession of the suit land to Kanwarpal Singh, then the conclusion is inevitable that on April 5, 1994, they were not in possession of the disputed land. Thus, according to him, it is obvious that the alleged recital made in the sale deed dated April 5, 1994, that possession of the suit land is delivered to the purchaser, is bogus. On that basis, he also submits that the mutation effected on the basis of the said sale deed as well as the entry made in the remark column in the Jamabandi do not affect the rights of Kanwarpal Singh. According to him, the lower appellate Court has rightly appreciated the facts and has arrived at correct conclusions which do not call for any interference.

So far as the agreement of sale dated June 2, 1992 is concerned, the alleged executants are not admitting its execution as an agreement of sale. According to them, it was a loan transaction. Certain alterations are effected therein to give it the form of agreement of sale. Defendants Jang Bahadur Singh and Achhar Singh have given affidavits in support of the plaintiff-Bhupinder Singh''s case that they have sold the suit land to Bhupinder Singh on April 5, 1994, for Rs. 36,500/- and on that very day they delivered the possession of the suit land to Bhupinder Singh. On the basis of this sale deed mutation is effected and even in the jamabandi in the remark column there is an entry to that effect. The Trial Court has considered the parties'' pleadings, documents and affidavits produced by them and passed an order in favour of Bhupinder Singh in his case and against Kanwarpal Singh in his case. The lower appellate Court has reversed both these orders simply on the ground that when on June 2, 1992, these vendors along with their brother Malkhan Singh entered into an agreement of sale with plaintiff-Kanwarpal Singh, accepted Rs. 40,000/- as earnest money and delivered possession of the suit land to Kanwarpal Singh on that very day, then it is not believable that on April 5, 1994, they delivered possession of the suit land to plaintiff-Bhupinder Singh. The lower appellate Court also adverted to this fact that these vendors Jang Bahadur Singh and Achhar Singh were co-sharers and could not have transferred 7 Kanals 6 Marias to plaintiff-Bhupinder Singh, which was beyond their share. On the basis of these observations, the lower appellate Court came to the finding that the sale deed dated April 5, 1994, was executed in order to frustrate the agreement of sale executed in-favour of Kanwarpal Singh June 2, 1992. Thus holding that Kanwarpal Singh has a prima facie case, as he is in possession of the disputed land, balance of convenience and point of irreparable loss are also in his favour, appeals filed by Kanwarpal Singh were allowed.

The lower appellate Court can interfere with the orders passed by the trial Court under order 39, Rules 1 and 2 CPC when it comes to the conclusion that the order of the trial Court suffers from clear violation of law or the findings recorded by the trial Court on issues of prima facie case, balance of convenience and irreparable injury are perverse and trial Court has not applied settled principles of law for appreciation of pleadings and evidence produced by the parties. The lower appellate Court has not arrived at any such conclusion. He formed a different opinion on the basis of facts and evidence produced by the parties. Simply on this ground that he has formed a different opinion on the facts and evidence produced by the parties, he has no jurisdiction to interfere with the orders passed by the trial Court, which are well considered and do not suffer from any infirmity. The trial Court has rightly observed that the agreement of sale does not create any right in the suit land in favour of Kanwarpal Singh. This point is in controversy between the parties whether after the said agreement of sale dated June 2, 1992, possession of the suit land was delivered to Kanwarpal Singh or whether possession of the suit land was delivered to plaintiff Bhupinder Singh on April 5, 1994, when the sale deed was executed in his favour, but plaintiff-Bhupinder Singh has filed affidavits of his vendors in his favour. He has also relied on mutation effected in his favour as well as entry made in the remark column in the Jamabandi, wherein the sale deed executed in his favour is mentioned. Thus, in my considered view, the trial Court has rightly granted injunction in favour of Bhupinder Singh and has rightly declined the injunction petition filed by Kanwarpal Singh.

Accordingly, both the revisions are allowed. The orders passed by the lower appellate Court in both the revisions are set aside and the orders passed by the trial Court are restored.