Kundan Lal vs Mohinder Pal and others

L.N. Mittal, J.

C. M. No. 2682-C of 2012 :

Allowed as prayed for.

C. M. No. 2683-C of 2012 :

Application is allowed and Annexures A-1 to A-6 are taken on record, subject to all just exceptions.

Main Appeal :

Defendant no.3 Kundan Lal has filed this second appeal having lost in both the courts below.

Respondent no.1-plaintiff Mohinder Pal filed suit against proforma respondents no.2 and 3 as defendants no.1 and 2 and against appellant as defendant no.3. The plaintiff alleged that suit house No.B-562 measuring 02 marlas, described by boundaries, was owned and possessed by Des Raj, who agreed to sell the same to the plaintiff for Rs.40,000/-and received Rs.21,000/-as earnest money and executed agreement dated 01.03.1999. Remaining sale consideration was to be paid at the time of execution of sale deed up to 30.04.1999. Possession of the suit house was given to the plaintiff at the time of agreement. However, Des Raj died on 20.03.1999 i.e. before the date stipulated for execution of sale deed. Defendants, claiming themselves to be legal heirs of Des Raj, threatened to alienate the suit property to somebody else and also threatened to dispossess the plaintiff therefrom. Accordingly, the plaintiff sought permanent injunction restraining the defendants from alienating the suit property and from dispossessing the plaintiff therefrom.

Defendants no.1 and 2, in their written statement, denied the plaintiff''s version. It was alleged that Surinder Kumari w/o Des Raj is residing in the suit property along with defendants. Plaintiff has no right, title or interest therein. Alleged agreement by Des Raj in favour of plaintiff was denied. Various other pleas were also raised.

Defendant no.3 also contested the suit and denied the plaintiff''s version. The agreement set up by the plaintiff was pleaded to be forged and fabricated document. Defendant no.3 is real brother of Des Raj. Defendant no.3 pleaded that he is residing in the suit property. It was also pleaded that Des Raj agreed to sell the suit property measuring 05 marlas to Neelam wife of Des Raj (Neelam was also alleged to be niece of Des Raj) for Rs.40,000/-. Des Raj also executed Will dated 13.11.1998 in favour of Neelam, who accordingly became owner of the suit property. Defendant no.3 claimed to be in actual physical possession of the suit property. Various other pleas were also raised.

Learned Civil Judge (Junior Division), Jalandhar, vide judgment and decree dated 07.11.2008, decreed the plaintiff''s suit. First appeal preferred by defendant no.3 has been dismissed by learned Additional District Judge, Fast Track Court, Jalandhar, vide judgment dated 05.12.2011. Feeling aggrieved, defendant no.3 has filed this second appeal.

I have heard learned counsel for the appellant and perused the case file.

Counsel for the appellant contended that plaintiff was not in possession of the suit property at the time of filing of suit because as per recital in the impugned agreement, possession was to be delivered to him at the time of execution of the sale deed, which was never executed. At the same time, counsel for the appellant also contended that the aforesaid agreement has not been proved by the plaintiff and the plaintiff''s whole case being based on the agreement, his suit could not be decreed. It was also contended that the plaintiff, in his cross-examination, admitted that defendant no.3 and Neelam Rani are residing in a portion of House No.B-2/562. It was also pointed out that the plaintiff stated that he had no document to prove his possession over the suit property.

I have carefully considered the aforesaid contentions, but the same cannot be accepted.

Plaintiff has claimed injunction regarding 02 marlas suit house. Defendant no.3-appellant himself pleaded that total area of the house is 05 marlas. Consequently, statement of plaintiff that defendant no.3 and Neelam Rani are residing in one portion of House No.B-2/562 does not imply that they are residing in the suit portion, as claimed by the plaintiff. On the other hand, it would only show that they might be residing in remaining portion of the same house.

As regards recital in the agreement, the agreement itself has not been proved. On the other hand, wife, daughter and son of Des Raj i.e. all his Class-I legal heirs effected compromise Annexure A-1 with plaintiff herein, vide which plaintiff paid the balance sale consideration of Rs.19,000/-, pursuant to agreement dated 01.03.1999 and as per this compromise, plaintiff was already in possession of the suit property. Thus, all Class-I heirs of Des Raj affirmed possession of the plaintiff over the suit property. It is undisputed that during his life time, Des Raj was owner in possession of the suit property. Alleged Will dated 13.11.1998, set up by defendant no.3 (allegedly executed by Des Raj in favour of Neelam Rani) has not been proved in the instant suit. Consequently, defendant no.3 cannot claim any right on the basis of said Will through Neelam Rani. In fact, defendant no.3-appellant has not claimed any right, title or interest in the suit property at all, except alleging that he is residing in the suit property along with Neelam Rani.

On the other hand, plaintiff is proved to be in possession of the suit property and defendant no.3 is not proved to be in possession thereof. Statement of plaintiff that he has no document to prove his possession over the suit property is irrelevant because he has produced documentary evidence to prove his possession over the suit property including compromise (Annexure A-1) effected with all legal heirs of Des Raj.

There is concurrent finding of fact by both the courts below that plaintiff is in possession of the suit property. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal or based on misreading or misappreciation of evidence so as to call for interference in second appeal. Defendants no.1 and 2 alleged that they were residing with Surinder Kumari w/o Des Raj in the suit property. However, Surinder Kumari along with her daughter and son affirmed the possession of the plaintiff over the suit property. Neither defendants no.1 and 2 nor defendant no.3 claimed any right, title or interest in the suit property of their own.

No substantial question of law arises for adjudication in this second appeal. The appeal is meritless and is accordingly dismissed in limine.