Harbhajan Singh vs Surinder Singh and Others

Sanjay Karol, J.—Defendant No. 2 Harbhajan Singh (appellant herein) has filed the present appeal under the provisions of Section 100 of the Code of Civil Procedure, assailing the judgment and decree dated 3.3.2015, passed by the learned District Judge, Una, District Una, Himachal Pradesh, in Civil Appeal No. 157/2014, titled as Harbhajan Singh v. Surinder Singh and another, whereby judgment and decree dated 20.6.2014, passed by Civil Judge (Senior Division), Court No. 1, Una, District Una, Himachal Pradesh, in Civil Suit No. 136/05, titled as Surinder Singh v. Davinder Singh (since deceased through LRs) & another, stands affirmed.

Plaintiff-respondent No. 1 Surinder Singh, hereinafter referred to as the plaintiff, filed a suit for possession, through specific performance of agreement, against defendant No. 1 Davinder Singh and his father defendant No. 2 Harbhajan Singh, alleging that defendant No. 1 inherited the suit property from his mother Smt. Jagdish Kaur, and mutation No. 305, dated 23.11.2001, entered in his favour. Vide agreement dated 17.4.2002, Davinder Singh agreed to sell the same to the plaintiff @ Rs. 16,000/- per kanal. Plaintiff also paid a sum of Rs. 50,000/-as earnest money to him. The balance sale consideration was agreed to be paid at the time of execution of the sale deed. Since agreement dated 17.4.2002 was misplaced, hence, fresh agreements dated 19.2.2004 and 19.8.2004 were executed. Plaintiff claims that instead of executing the sale deed within the stipulated period, defendant No. 2, in connivance with defendant No. 1, on the basis of a Will, got mutation of the suit land attested in his favour on 12.1.2005. Plaintiff was always ready and willing to execute the sale deed and as such approached defendant No. 1 many times, but to no avail.

During the pendency of the suit, defendant No. 1 Davinder Singh expired and his Legal Representatives contested the suit by filing written statement. Besides taking preliminary objections, on merits, they averred that neither did defendant No. 1 succeed to the suit property nor was he having any right, title or interest in the same. They denied execution of agreements dated 19.2.2004 and 19.8.2004.

No written statement was filed by defendant No. 2 Harbhajan Singh.

Based on the pleadings of the parties, trial Court framed the following issues:

"1. Whether the defendant No. 1 agreed to sell the suit land to the plaintiff @ Rs. 16000/- per kanal vide agreement dated 17.4.2002? OPP

Whether the defendant No. 1 received a sum of Rs. 50,000/- as earnest money at the time of execution of the agreement dated 17.4.2002, as alleged? OPP

Whether the defendant No. 1 executed new agreements dated 19.2.2004 and 19.8.2004 in terms of agreement dated 17.4.2002? OPP

Whether the plaintiff is entitled for the recovery of Rs. 1,00,000/- alongwith interest? OPP

Whether the plaintiff has no locus-standi to file the present suit? OPD

Relief."

Based on the evidence led by the parties and the material placed on record, trial Court decreed the suit in the following terms:

"As a sequel to the aforesaid discussion and findings on the issues, suit of plaintiff succeeds and is accordingly decreed with costs. Resultantly, plaintiff is entitled for possession through specific performance of agreement dated 17.04.2002 of land measuring detailed below:

i) land measuring 0-18-69 hects. being 1/3rd share out of land measuring 0-56-08 hects., bearing khewat No. 317, khatauni No. 453, khasra No. 1457;

ii) land measuring 0-04-58 hects., being 1/3rd share out of land measuring 0-13-75 hects. bearing khewat No. 326min, khatauni No. 464, khasra No. 1388,

as entered in jamabandi for the year 2000-2001 situated in Upmohal Majhlian, Mahal Behdala, Tehsil and Distt. Una, H.P.

Defendants are hereby directed to deliver possession of the suit land and execute sale deed in favour of plaintiff on depositing balance sale consideration i.e. Rs. 27,600/- as stated in para No. 5 of plaint. Decree sheet be accordingly prepared. File, after due completion, be consigned to the record room."

No appeal was filed by the LRs of defendant No. 1 Devinder Singh.

In an appeal filed by defendant No. 2 Harbhajan Singh, findings of fact, judgment and decree, so passed by the trial Court, stand affirmed by the lower appellate Court.

From the evidence on record, it is evidently clear that by way of succession, defendant No. 1 Davinder Singh acquired rights of ownership, through his mother Smt. Jagdish Kaur. Entry of mutation No. 305, dated 23.11.2001 was entered. However, on the basis of Will dated 28.3.1997, defendant No. 2 Harbhajan Singh got the property mutated in his own name vide order dated 12.1.2005.

It is a settled position of law that entries of mutation in the revenue record do not confer any title to the property. It is only an entry for collection of land revenue from the person in possession. The title to the property has to be on the basis of the title with regard to the acquisition of land and not by mutation entries. However, unless contrary is established, entries of mutation are taken to be correct. [See: Durga Das Vs. The Collector and others, {relied upon in Suman Verma Vs. Union of India (UOI) and Others, ; Balwant Singh and another etc. Vs. Daulat Singh (dead) by L.Rs. and others, ; Mahila Bajrangi (dead) through Lrs. and Others Vs. Badribai and Another, and H. Lakshmaiah Reddy and Others Vs. L. Venkatesh Reddy ]

In the suit, filed on 14.6.2005, plaintiff alleged that defendant No. 1 Davinder Singh, who is son of defendant No. 2 Harbhajan Singh, agreed to sell the land in question, vide Agreement dated 17.4.2002. Suit land was agreed to be sold @t Rs. 16,000/- per kanal and Rs. 50,000/- paid as earnest money. Sale deed could not be executed, solely on account of pressure put in by defendant No. 2, for defendant No. 1 was residing in the neighbouring State of Punjab and was not doing anything over the suit land. Subsequently, agreement dated 17.4.2002 was novated by Agreements dated 19.2.2004 and 19.8.2004, wherein again defendant No. 1 agreed to sell the very same land to the plaintiff. Despite the plaintiffs willingness to perform his part of the contractual obligations, sale deed could not be executed, solely on the ground of unwillingness on the part of the vendor. All such facts stand proved through the testimonies of the witnesses.

In the suit, plaintiff impleaded both the father and the son as defendant No. 2 and defendant No. 1, respectively. He was proceeded ex-parte on 28.3.2003 and filed an application for recalling of the said order only on 10.2.2014, which stood dismissed vide separate order dated 24.3.2014. Defendant No. 2 chose not to contest the suit. On the basis of written statement so filed by defendant No. 1, trial Court framed the issues, which stood adjudicated in favour of the plaintiff.

It is also a matter of record that during the pendency of trial, defendant No. 1 died and his legal heirs brought on record, who chose not to contest the judgment and decree passed by the trial Court. Only defendant No. 2 filed an appeal, which stands dismissed, in terms of the impugned judgment.

It be only observed that none of the legal heirs of defendant No. 1 Davinder Singh has chosen to assail the findings returned by the Courts below.

In this view of the matter no error can be found with the findings returned by the Courts below.

Independently, the Court has also examined the case on merits. The agreements in question stand proved on record through the testimonies of the scribe; attesting witnesses; and the witnesses to the transaction in question. In terms of the agreement, earnest money stood paid and received by the owner in question. As on the date of the execution of the agreements, it was defendant No. 1, who was the recorded owner of the suit property. The Will, allegedly executed by Smt. Jagdish Kaur, original owner of the suit property, cannot be said to have been proved on record. Legality and validity of the agreements in question stand concurrently considered by the Courts below and there is no reason to interfere with such findings of fact.

As such, it cannot be held that findings returned by the Courts below are illegal, perverse and erroneous, warranting interference by this Court. No question of law, muchless substantial question of law, arises for consideration in the present appeal.

For all the aforesaid reasons, the appeal is dismissed. Pending application(s), if any, also stands disposed of.