Dheeraj Ram (since deceased) through his LRs vs Ram Singh

Sureshwar Thakur, J.

1.The plaintiffs’ suit, for, rendition of a decree, for, permanent prohibitory injunction vis-a-vis the suit land, and, vis-à -vis the defendant, was,

concurrently decreed, by both the learned Courts below, whereas, the defendants’ counter claim, for rendition, of a decree of mandatory

injunction, for, dismantling the dhara raised thereon, was also concurrently dismissed, by both the Courts below.

Briefly stated the facts of the case are that vide agreement to sell of 21.12.1998 the plaintiff has agreed to purchase the land measuring 4 biswas

out of the total land measuring 1956.94 sq. mtr. comprised in Khasra No. 160 Mauza Kasumpti Junga, Shimla. The plaintiff has paid Rs. 40,000/ - to

the predecessor-in-interest of the defendant. The predecessor-in-interest of the defendant at the time of entering into agreement has given the

possession of the land measuring 4 biswas to the plaintiff on the spot as would be depicted by the agreement and in lieu of this, the predecessor-in-

interest of defendant fenced his plot land measuring 4 biswas on the spot. The defendants has agreed to get the sale deed registered in the name of

the plaintiff as and when he will become the owner of the land as comprised in Khasra No. 160. The predecessor-in-interest of the defendant died on

21.7.2002 and thereafter right regarding the mutation regarding non-occupancy tenant is believed to be transferred in favour of the defendant and who

in turn tried to grab the land which the plaintiff had agreed to purchase by removing the barbed wire through which 4 biswas of land agreed to be

purchased has been fenced. Defendant tried to block the passage which goes to the plot of the plaintiff.

The suit is contested by the defendant by filing written statement taking preliminary objection that the suit is not maintainable and the plaintiff is

estopped from filing the present suit on account of his own acts, deeds, that the suit is bad for non-joinder of necessary parties, that no cause of action

ever accrued in favour of the plaintiff and that there is no privity of contract between the plaintiff and the defendant to file the present suit. The case

of the defendant is that the agreement of 21.12.1998 executed in between the predecessor in interest of the defendant late Sukh Ram and the plaintiff

is conditional agreement and the same is void ab-initio and is not binding against the rights of the defendant. It is contended that the plaintiff never

remained in possession of the property agreed to be sold by the predecessor-in-interest vide agreement dated 21.12.1998. The defendant is in

exclusive and physical possession of the suit land. It is admitted that after the death of late Sh. Sukh Ram, land in question was recorded in the name

of defendant vide mutation No. 206. That the plaintiff never remained in possession of the land but after trespassing over the property of the

defendant succeeded in raising a tin sheet dhara approximately 10’x12’ feet on land comprised in Khasra No. 160 and for that the defendant

is hereby filing counter claim for the demolition of the same.

The defendant has also filed the counter claim. The defendant alleged that the predecessor-in-interest of the defendant late Sh. Sukh Ram recorded

in possession of the land comprised in Khasra No. 160, 161 and 162, Khata khatauni No. 159 min/202, measuring 2004-86 meters, situated at Mauja

Kasumpti Junga, Tehsil and District Shimla, H.P The State of H.P, is recorded as owner of this land. The predecessor-in-interest of the defendant late

Sh. Sukh Ram died on 24.6.2002 and mutation No. 206 of inheritance was entered in his favour. The plaintiff on the basis of agreement dated

21.12.1998 alleged to have been executed by late Sukh Ram is trying to interfere in the possession of the land of the defendant comprised in Khara

No. 160, 161 and 162. The plaintiff recently on 5.10.2000 raised Tin sheet Dhara, measuring 10x12 feet approximately on a portion of the land

comprised in Khasra No. 160, after trespassing the land possessed by the defendant. The plaintiff has no right, title or interest in the suit property and

the agreement of 21.12.1998 is null and void and is not binding against the rights of the defendants.

The plaintiff has filed the reply to the counter claim taking the preliminary objections that the counter claim is not competent neither maintainable,

that the counter claim as filed by the defendant is not only based on false grounds and if the record of the case filed by the predecessor-in-interest of

defendant through defendant is seen then it will become manifest clear on record of the case that since from the time of agreement to sell the plaintiff

are in exclusive possession of the suit property. On merits the plaintiff also denied the averments contained in the counter claim. The case of the

plaintiff is that vide agreement of 21.12.1998, executed between the plaintiff and the defendant, the plaintiff is in exclusive possession

of the land and the possession of the same land was delivered to the plaintiff by the predecessor-in-interest of the defendant on the dateÂ

of agreement, as such the question of interference in possession of the defendant over the suit land does not arise. The defendant is not in

the possession of the suit land as such the plaintiff cannot be restrained by way of permanent prohibitory injunction. The defendant filed the replication

thereto and re-affirmed the allegations contained in the counter claim and denied the averments contained in the written statement.

On the pleadings of the parties, the following issues were framed on 2.4.2004:

Whether the plaintiff is entitled to the relief of permanent prohibitory injunction as prayed ? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff is estopped from filing the present suit due to his own acts, deeds, conduct, admissions, and omissions?OPD

Whether the suit is bad for non-joinder of necessary parties? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Whether there is no privity of contract between the plaintiff and defendant? OPD

Whether the defendant is entitled for the relief of permanent prohibitory injunction? OPD

Whether the defendant is entitled for the relief of mandatory injunction? OPD

Relief.

The plaintiff’s suit, for, rendition, of, a decree of permanent prohibitory injunction vis-à -vis the suit land, and vis-a-vis the defendant, was,

concurrently decreed, by both the learned Courts below, whereas, the defendants’ counter claim, for rendition, of a decree of mandatory

injunction, for dismantling the dhara, raised thereon, was also, concurrently dismissed, by both the learned Courts below. The aggrieved defendant

instituted, an appeal, before the learned first appellate Court, and, the later proceeded, to affirm the judgment and decree, pronounced by the learned

trial Court. Consequently, the defendant is aggrieved therefrom.

Now the defendant/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded

in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, on 31.5.2007, admitted

the appeal, instituted by the defendant/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter

extracted substantial questions of law:-

Whether a permanent prohibitory injunction granted to plaintiff where the subject matter of the suit is immovable property and without mentioning a

specific description of the property sufficient to identify it as provided under Order 7 Rule

3 CPC in the plaint or even filing any revenue record identifying the land is questioned.

Whether an agreement to sell can be said to be proved in accordance with law without examining the deed writer or at least one witness of the

agreement?

Whether the learned First Appellate Court and learned Lower Court has jurisdiction or is empowered to hold a plaintiff party as a sub tenant under

H.P. Tenancy and Land Reforms Act, 1972 without any pleadings of the plaintiff for such relief or any notification form State of Himachal Pradesh

regarding such conferment of sub-tenancy?

Substantial questions of law No. 1 to 3.

The apt agreement borne in Ext. P-1, was, executed interse the plaintiff, and, the predecessor-in-interest, of, the defendant. The valid and due

execution, of, Ext. P-1, is proven by PW- 2, who, in his testification, has unequivocally, deposed of, its standing executed interse the plaintiff, and, the

predecessor-in-interest, of, the defendant. He has also proven the occurrence, of, his signatures, in Circle “Bâ€, drawn in Ext. P-1. However, the

afore rendered testification of PW-2, in respect, of, valid execution of Ext. P- 1 by the predecessor-in-interest of the defendant, though was concerted,

to be ripped, vis-Ã -vis its efficacy, by the learned counsel for the defendant, while subjecting PW-2, to an ordeal of an exacting cross examination,

yet, nothing emanated from him, for hence belying, the, testification rendered by PW-2, in his examination-in-chief, wherein he has lent rather

efficacious proof vis-Ã -vis the valid, and, due execution, of, Ext. P-1. The effect, of, hence cogent proof being adduced vis-Ã -vis, the apt valid

execution thereof, by the predecessor-in-interest of the defendant, also garners fortified force, from, an admission hence occurring in the cross-

examination of the defendant, qua Ext. P1 hence standing executed interse the plaintiff, and, the predecessor-in-interest, of, the defendant.

Consequently, it is to be firmly held, qua, cogent proof standing adduced vis- Ã - vis, the, valid execution, of Ext. P-1, interse the plaintiff, and, the

predecessor-in-interest of the defendant.

Be that as it may, a perusal of Ext. P-1, underscores (i) of the predecessor-in-interest, of, the defendant hence contracting to sell the suit land, vis-

a-vis the plaintiff (ii) , and also a clear depiction(s) occurs therein, of, his receiving, a, sale consideration, comprised in a sum of Rs. 40,000/-, from the

plaintiff, and, qua in contemporanity vis-Ã -vis its execution, the, possession of the suit land being delivered to the plaintiff. The factum, of handing

over possession, of, the suit property, at, the time contemporaneous, to the execution of the Ext. P-1, also gathers strength, from, the unrebutted

deposition, rendered by DW-1, Junior Engineer, working with the Municipal Corporation, Shimla, wherein he has echoed, of, proceeding(s) for raising,

of, unauthorized construction, upon the suit land by the plaintiff, hence being subjudice before the Municipal Corporation, Shimla. However, the

aforesaid unrebutted testification, rendered by DW-1, has also to be construed, with, the trite factum, of, the Jamabandi, apposite to the suit land,

depicting, in its column of ownership, qua the State of Himachal Pradesh, being owner thereof, (ii) whereas, in the column of possession, the

predecessor- in-interest, of the defendant, is, recorded to be holding possession thereof, significantly as “Gair Marusiâ€. As aforestated, nowat,

with Ext. P-1 hence being concluded to be proven to be validly executed, and, with the imperative condition, occurring therein, of, the apt readiness

and willingness of parties thereto, to, execute, a, registered deed of conveyance, at a stage, when title as owner vis-Ã -vis the suit property, is

bestowed upon one Sukh Ram (iv) and, with, the aforesaid preemptory condition(s), for, hence facilitating the execution, of, a registered deed of

conveyance, interse the plaintiff, and, the predecessor of the defendant, rather evidently remaining unsatiated, (v) thereupon for want of satiation, of,

the apposite condition precedent, hence rendered, unamenable, for execution, the registered deed of conveyance, vis-Ã -vis the suit property. The

effect of the suit land, hence being evidently owned, by the State of Himachal Pradesh, and, the predecessor- in-interest, of, the defendant, one Sukh

Ram, who, executed Ext. P-1 vis-à -vis the suit property, with, the plaintiff, standing recorded in the apt column of possession, to be a

“gair Marusiâ€, under the State of H.P., hence directly impinges upon, the validity of espousal(s) made by the plaintiff (i) for

rendition of, a, decree of permanent prohibitory injunction, AND vis-a- vis the validity, of attraction(s) hereat, of, the provisions borne, in, Section 53-A,

of, the Transfer of Property Act, provisions whereof stands extracted hereinafter:

“53A Part performance: Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his

behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part

performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in

possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to

perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the

manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing

against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in

possession, other than a right expressly provided by the terms of the contract; Provided that nothing in this section shall affect the rights of a

transferee for consideration who has no notice of the contract or of the part performance thereof.â€(iii) And espousal(s) qua given, the statutory

coinage, occurring, in Section 2 (17) of the H.P. Tenancy and Land Reforms Act, also including therewithin, a sub-tenant, thereupon dehors non-

attraction, hereat of, the mandate of Section 53-A, of, the Transfer of Property Act, rather the plaintiff being construable to be a sub-tenant, under, the

recorded “gair marausiâ€​ especially vis-a-vis the suit land.

Initially, this Court is enjoined, to, fathom, the validity of the espousal, of, the counsel for the defendant, qua attraction hereat, vis -Ã -vis, the,

mandate borne, in Section 53 - A of the Transfer of Property Act, (i) wherein stands contemplated the doctrine of part performance, (ii) doctrine

whereof is espoused to be attractable hereat, and hence arises, from, the entire sale consideration, contemplated in Ext. P-1, purportedly being, at the

time of its execution rather being liquidated, by the plaintiff, vis-a-vis the predecessor-in-interest, of, the defendant, and also, in contemporanity thereof

evident possession, of, the suit property, being delivered vis-Ã -vis the plaintiff, hence reiteratedly the completest satiation vis-Ã -vis its mandate, being

evidently begotten. However, for the reasons to be assigned hereinafter, the mandate of the aforesaid provisions, do not beget, their apt attraction

hereat a) given the gravamen or the trite groovings, of, the statutory contemplation(s), borne in Section 53-A, of the Transfer of Property Act, being,

of the apt contract of sale, evidently executed interse, the executants thereof, being not beyond the ambit of law rather it being within the ambit of law.

However, when the contract of sale, occuring in Ext. P-1 rather embodies, a, condition precedent, and, only upon satiation thereof, the apt registered

deed of conveyance would come into being or (iii) in other words, unless the condition precedent achieved, the fullest satisfaction, thereupon alone the

contract, of sale was amenable, for its completest performance. Furthermore, (b) with evidently herebefore, the apt condition precedent remaining

unsatiated, besides when, at the time contemporaneous, to, the execution of Ext. P-1, a specific mandate is, borne, in the proviso vis-Ã -vis Section

104, of, the Himachal Pradesh, Tenancy and Land Reforms Act, proviso whereof stands extracted hereinafter: “Provided that nothing contained in

this section shall apply to such land which is either owned by or is vested in Government under any law, whether before or after the commencement

of this Act, and is leased out to any person.†And imminently when proviso aforesaid was, in contemporanity vis-à -vis its execution, hence in force

thereat, and, with a statutory bar, standing encapsulated therein, against, conferment of proprietary rights vis-à -vis non-occupancy tenants’, under

the State of H.P., (i) and, with the aforesaid apposite condition precedent rather perse, openly and candidly, being militative vis -Ã -vis the proviso,

thereupon an inference, is engendered, of, the apt contract of sale borne in Ext. P-1, being contrary, to, the mandate of, the proviso apt vis-Ã -vis

Section 104 of the Act, (ii) besides, as a natural corollary hence with no alienable title, rather at the apposite stage, hence vesting in the predecessor-

in-interest of the defendant, contrarily his being rather visibly incapacitated, to, execute Ext. P-1 with the plaintiff, (i) nor also hence, with, the fulcrum

of Section 53-A, of, the Transfer of Property Act, being rested, upon, an agreement to sell, rather being within the ambit of law, and, not beyond it, (i)

whereas apparently, with Ext. P-1 being beyond the ambit of law, thereupon the ingredients, of, the provisions, borne in Section 53-A of the Transfer

of Property Act, are not attractable hereat AND hence any apt defrayment, of, sale consideration(s) in, contemporanity, to, the execution of the Ext.

P-1, is, wholly insignificant, besides, any delivery of possession, in contemporanity thereof, is also legally unworthwhile.

The learned counsel for the plaintiff, has argued, that the provisions of Section 43 of the Transfer of Property Act, are, however attracted vis-Ã -

vis the facts at hand. The aforesaid contention is also unworthy, of merit, for the reason a) the trite canon hence embodied therein rather remaining

evidently unsatiated, vis-a-vis execution of Ext. P-1, significantly, qua its execution being spurred by vices of fraudulence or erroneous representation ,

(i) especially nor also the predecessor-in-interest, of the defendant, though, at the apposite stage being visibly dis-empowered to execute it, with, the

plaintiff, his rather hence not making, any, erroneous representation vis-Ã -vis his apposite empowerment, given the occurrence therein, of, the apt

untenable condition precedent, (ii) besides, with, the aforesaid imperative ingredients obviously remaining unpleaded. nor evidence in satiation thereof,

being adduced, (iii) whereas rearing, of, pleadings, in, consonance therewith, besides adduction of evidence in satiation thereof, rather was imperative,

for hence attracting its clout, and, mandate. Further more, also when clear recital(s), are, borne therein qua upon apt acquisition of proprietary rights ,

by the predecessor-in-interest, of, the defendant, vis-Ã -vis the suit property, his, contractually obliging himself, to, execute, the, registered deed of

conveyance, with, the plaintiff also does dis -empower, the plaintiff to contend, of Ext. P-1, being infected with vices of fraudulence or erroneous

representation(s) , (iv) also he cannot contend, of, statutory benefits thereof, being accruable vis-Ã -vis him, nor is he hence amenable, for, being

construed to be vis-à -vis the recorded owners of the suit land, as a “gair marusi†thereunder nor also it can be said, of, the trite ingredient

existing therein, of his, being a transferee in good faith, for consideration, hence, begetting satiation, importantly, with the apt aforesaid untenable

condition precedent, rather being visibly borne therein.

The learned counsel for the plaintiff, has also concerted, to validate the impugned judgment, on score of the definition of “tenant†occurring in

Section 2 (17) of, the HP Tenancy and Land Reforms Act, also including, a, sub tenant. He contends, that, the plaintiff being hence construable to be

a sub-tenant vis-Ã -vis the suit land. The aforesaid submission, is wholly mis maneuvered, as neither pleadings apposite thereto, are, borne in plaint nor

evidence in satiation thereto exist, nor any apt therewith application stood instituted, by the plaintiff before the Revenue Officer concerned, nor in

sequel thereto, any apposite order for, the plaintiff being incorporated, as a sub-tenant, under the predecessor in interest, of the defendant being, stood

hence rendered.

Consequently, the sumum bonum, of, the aforesaid discussion, is, that with the state of Himachal Pradesh, being owner of the suit property, and,

with predecessor-in-interest of the defendant, being recorded a “Gair Marusi†thereon, thereupon till the unauthorized dhara raised thereon, is

dismantled under a valid order, made, by the statutory authority concerned, thereupto plaintiff, shall retain the possession, of the suit property. For

meteing the ends of justice, the plaintiff, is directed to release a sum of Rs. 40,000/- vis-Ã -vis the defendant, and also dehors the above, it is also open,

for the parties to make apt motions before, the revenue Officers concerned, vis-Ã -vis the plaintiff, being incorporated, in the relevant record(s), as a

sub-tenant, vis-Ã -vis the suit land.

The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court, being not

based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the

learned trial Court, have excluded germane and apposite material from consideration. Accordingly, the substantial questions of law areÂ

answered in favour of the appellant/defendant, and, against the respondent/plaintiff.

In view of the above discussion, the present Regular Second Appeal is allowed. In sequel, the judgments and decrees rendered by both the learned

Courts below are set aside, and, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. All pending applications also stand

disposed of. No order as to costs.