Hardeep Kumar and Others vs Kailash Chand and Another

Vinod K. Sharma, J.—This regular second appeal, is directed against the judgment and decree dated 6.8.2007, passed by the learned Courts below, vide which the suit filed by the plaintiff/appellants for declaration, possession and permanent injunction, was ordered to be dismissed.

The plaintiff/appellant filed a Suit, on the pleadings that Bhagat Ram son of Harnam Dass and Harbhagwan Dass and Des Raj sons of Jagan Nath, were the owners to the extent of 1/2 share of the property in dispute. Lala Babu Ram, grandfather of the plaintiffs, purchased half share from Bhagat Ram vide registered sale deed dated 12.12.2002 BK, and accordingly became owner of the share of Bhagat Ram. It was pleaded case of the plaintiff/appellants, that in the year 2005 BK, Lala Babu Ram got half share from Harbhagwan Dass and Des Raj as mortgagee for a sum of Rs. 99/- (Rupees ninety nine only). It was claimed, that plaintiff/appellants were in possession of the property as owner of half of the share, and mortgagee of the another half. In addition, plea of adverse possession was also raised, pleading therein that plaintiff/appellants had perfected their title by way of adverse possession, as their possession was uninterrupted and hostile for more than 12 years.

The suit was contested by the defendant/respondents, wherein stand was taken, that the defendant/respondents were in possession of the half share, in pursuance to the sale deed executed in their favour by Amar Nath.

On the pleadings of the parties, the learned trial Court framed the following issues:

Whether the plaintiffs are owners of the suit site? OPP

If the issue No. 1 is not proved, whether plaintiffs have become owners of the suit site by adverse possession? OPP

Whether the plaintiffs are entitled to possession as prayed for? OPP

Whether the plaintiffs are entitled to mandatory and permanent injunction as prayed for? OPP

Whether the suit is bad for mis-joinder and nonjoinder of necessary parties? OPD

Whether the defendants are entitled to special costs, if any? OPD

Whether defendant is owner of the site in dispute, if so its effect? OPD

Whether vendor had the title to execute sale deed in favour of defendant? OPD

5-A Whether suit is within limitation? OPP

5-B Whether plaintiffs have affixed proper court fee on the suit? OPP

Relief.

In spite of the fact, that ownership and possession of the plaintiff/appellants, qua half share purchased from Bhagat Ram was not in dispute, still the learned trial Court decided issues No. 1, 2 and 3 against the plaintiff/appellants.

On issue No. 4, the learned trial Court held, that the plaintiff/appellants, were not entitled to discretionary relief of injunction. Whereas, issues No. 5 and 6 were decided against the defendants being not pressed.

The trial Court on issue No. 7, held the defendants to be owner in possession of the suit property, accordingly, issues No. 7 and 8 were decided in favour of the defendant/respondents, holding, that the defendants were owner of the site in dispute, and that their vendor had valid title, to execute the sale deed.

Issues No. 5-A and 5-B were also decided against the plaintiff/appellants.

Resultantly, the suit was dismissed.

In appeal, the findings recorded by the learned trial Court have been affirmed.

Learned Counsel for the appellants, contends that this appeal raises the following substantial questions of law:

Whether in view of the admission by the defendant/respondents, that the plaintiffs were owner in possession over half share of the property in dispute, in pursuance to the purchase from Bhagat Ram, could the suit be dismissed in toto?

Whether the judgment and decree of the learned Courts below holding, the defendant/respondents to be owner in possession, is outcome of misreading of evidence, thus, perverse?

In support of the substantial questions of law, the learned Counsel for the appellants, vehemently contended that it was not disputed by the defendant/respondents, that half portion of the property in dispute was purchased by the predecessor-in-interest of the plaintiff/appellants from Bhagat Ram and they were put in possession of said property i.e. 1/2 share.

The contention of the learned Counsel for the appellants, therefore, was that the learned Courts at least were bound to decree the suit, qua half portion of the property by declaring the plaintiff/appellants to be owner in pursuance to the purchase by their predecessor-in-interest Lala Babu Ram.

It is also the contention of the learned Counsel for the appellants, that the learned Courts below committed an error in dismissing the suit even though the defendant/respondents had failed to prove their title, to claim ownership and possession over the suit property.

The learned Counsel for the appellants also contended, that there is no positive finding by the learned Courts below, holding that the plaintiff/appellants, were not in possession, to deny the relief of injunction.

On the contentions referred to above, the learned Counsel for the appellants prays that the substantial questions of law framed, be answered in favour of the appellants.

On consideration, I find force in the contentions raised by the learned Counsel for the appellants, on first substantial question of law. Once it was not disputed that the plaintiff/appellants were owner in possession of half share of the property in dispute, which was purchased by their predecessor-in-interest from Bhagat Ram, the learned Courts below should have decreed the suit partly qua the half portion of the property, and dismiss qua other half, for which the plaintiff/appellants failed to prove their title or possession.

Once the injunction was sought on the basis of title, the plaintiff/appellants were not entitled to injunction qua the other half. Even otherwise it was defendant/respondents, who were found to be in possession of half portion in pursuance to the sale by Amar Nath.

The first substantial question of law is answered in favour of the appellants, by holding that in view of admitted position, the suit could not be dismissed in toto.

The second substantial question of law, deserves to be answered against the plaintiff/appellants, in view of the settled law that the plaintiff/appellants are to stand on their own legs, and cannot depend upon the weakness of defendant/respondents.

Once, the plaintiff/appellants claimed, injunction on the basis of ownership and failed to prove ownership, they were not entitled to injunction qua the other half of the property, which was in possession of the defendant/respondents, in pursuance to the sale by Amar Nath, who was recorded, as owner in possession.

The plaintiff/appellants having failed to prove their title or possession over half of die suit property, could not succeed merely, on the ground that the defendant/respondents failed to prove title of their vendor. Once, defendant/respondents were in possession, the plaintiff/appellants, were not entitled to relief of injunction.

The second substantial question of law is answered against the plaintiff/appellants and in favour of the defendant/respondents. The finding of the learned Courts below cannot be said to be perverse or outcome of mis-reading of evidence.

This appeal is partly allowed, the judgment and decree passed by the learned Courts below is modified, and the suit filed by the plaintiff/appellants, seeking declaration and injunction, is decreed qua half portion of the property in dispute, which was purchased by Lala Babu Ram from Bhagat Ram, whereas suit qua 1/2 share in possession of defendant/respondents is dismissed.

No costs.