Mukand Singh and Others vs Jang Singh and Others

M.M. Kumar, J.—This is plaintiff''s regular second appeal against the judgment of the learned Additional District Judge, Sangrur dated 28,5.1980. The learned Additional District Judge, Sangrur has reversed the findings of the trial court decreeing the suit of the plaintiff vide its judgment and decree dated 29.10.1979. Aggrieved by the order of the reversal of the judgment and decree passed by the Additional District Judge, the plaintiffs-appellants (for brevity ''the plaintiffs'') have filed the present appeal seeking setting aside of the judgment and decree passed by the learned Additional District Judge, Sangrur.

The plaintiffs filed a suit for permanent prohibitory injunction claiming that defendant No. 1 Jang Singh was owner in possession of the suit land according to the Jamabandi for the year 1975-76 of village Lbhatwaddi Tehsil Male''rkotla. It was further claimed that Suijit Singh and Hardeep Singh, defendant Nos. 2 and 3 had no connection with the suit property. Further case set up by the plaintiffs is that defendant No. 1 Jang Singh had sold the suit property to the plaintiffs by executing four sate deeds on 6.6.1978 which could not be registered because in a separate suit, defendant No. 2 and 3 were granted ad interim injunction by the Civil Court restraining defendant No. 1 from alienating the suit property. It is claimed by the plaintiffs that Jang Singh, defendant No. 1, had delivered possession of the suit land to them on 6.6.1978 and rapt rojnamcha wakiati which was lodged in this regard on 7.6.1978 with the Patwari also supports this version. In order to protect their possession against defendant Nos. 2 and 3 a suit was filed seeking permanent prohibitory injunction.

The suit was contested by defendant Nos. 2 and 3 by setting up a plea that the plaintiffs are not owner in possession of the suit and nor they are entitled to seek permanent perpetual injunction. They asserted that the land is joint Hindu family property of the defendants and its sale by four unregistered sale deeds dated 6.6.1978 in favour of the plaintiffs was neither for consideration nor for any legal necessity.

Before the trial Court, the plaintiffs produced eight witnesses and also got all the four unregistered sale deeds exhibited as Ex.P.1 to P.4. They also got two agreements to sell Exs.PW3A and PW3B exhibited in respect of the suit land executed by defendant No. 1 and a receipt of Rs. 8,000/- paid by them to defendant No. 1 was also proved. A further piece of evidence in the form of rapt rojnamcha wakiati Ex. PW 4A has also been produced by the plaintiffs.

On behalf of defendants statements of Surjit Singh as DW1 and Mukhtiar Singh as DW2 were recorded besides tendering in evidence documents Ex.D1 to D6. These documents have been produced to show that the suit property was the joint Hindu family property and with a further object of showing that the cultivating possession of the suit property was never given to the plaintiffs. Ex.Dl is a copy of the Jamabandi for the year 1960-61 which shows that in the column of ownership name of Kaku Singh father of Jang Singh used to figure. Ex.D2 is Khasra Girdawari for the year 1978-79 where the names of defendant Nos. 2 and 3 figures to the extent of one third share and name of Jang Singh figure to the extent of two third share. Ex.D3 is also a copy of Jamabandi recorded in the year samat 2005-2006 where the name of Kaku Singh i.e. grand father of defendant Nos. 2 and 3 and Kehar Singh brother of Kaku Singh had been recorded. The same is the position in Ex.D4 which is jamabandi for the year 1960-61. Ex.D5 and D6 are jamabandis which show the name of the cultivator and the land is shown to be under self cultivation. A perusal of these documents leaves no manner of doubt that in the year 1977-78 in the column of cultivating possession, the land is shown to be under self cultivation of the owners and for the year 1978-79, Ex.D1, also shows that it was under self cultivation. The learned trial court relying on the recitals in the unregistered sale deed and also on the entry made in the rapt rojnamcha wakiati dated 7.6.1978 which showed that the possession of the suit land was delivered to the plaintiffs on 6.6.1978 concluded that the possession of the suit property was with the plaintiffs, although they did not become the owner. Further reason for the trial court to conclude in favour of the plaintiffs in so far as their possession was concerned, is that defendant No. 1 Jang Singh did not contest the suit and it was claimed that defendant Nos. 2 and 3 have no right whatsoever over the property belonging to Jang Singh. The trial Court while giving finding in favour of the plaintiffs with regard to possession looked with suspicion to the statement of Maghar Singh PW7 who had stated that the plaintiffs were not delivered possession and they were not in possession. Even Jagat Singh, Patwari, PW4, made a statement that Khasra girdawari even for the year 1978-79 was not in the name of the plaintiffs. Relying on a judgment in the case Liladhar Vs. Siaram and Another, , unregistered sale deed is admissible for collateral purpose namely to prove the possession of the vendee, the trial Court concluded that the plaintiff were entitled to protect their possession on the basis of unregistered sale deeds and their possession could not be disturbed by the vendor or any person claiming through him. With regard to the character of the property that it was a joint Hindu family property, the finding given was that the suit land exclusively fell to the share of Jang Singh, defendant No. 1 during the partition proceedings between the defendants and the fact was admitted by defendant No. 2 and the character of the joint Hindu family property in the case was disrupted by the partition between the defendants. The finding was also given by the learned trial Court that the sale of the land was for legal necessity with the object of marrying the daughter and son. On these premises the suit of the plaintiffs was decreed for permanent perpetual injunction.

Against the various findings given by the learned trial Court, the appellate Court found that once the statement of Mukand Singh PW7 and Jagat Singh, Patwari, PW4 was against the plaintiffs where they stated that the plaintiffs were never delivered possession, it was erroneous for the trial Court to hold that the plaintiff were in possession or they were delivered possession, by defendant No. 1. The learned Additional District Judge found that the mere recital in the unregistered sale deeds would not be sufficient to show that the plaintiffs were in cultivating possession of the suit property. The approach of the learned appellate Court is clear from paras 8 and 9 which reads as under:

"The plaintiffs in this behalf mainly relied upon the recitals in the sale deeds Ex.P1 to Ex.P4 and report PW4/A that was lodged with the Patwari regarding delivery of possession of the suit land to the plaintiffs. Treating this evidence as admission of Jang Singh, defendant about the delivery of possession of the suit land to the plaintiffs the learned trial Court held that the plaintiffs were proved to be in possession of the land in dispute, both this in my opinion was not the correct position. No doubt recitals in the sale deed and report lodged with the Patwari could be treated as admission on the part of Jang Singh about delivery of possession of the suit land to the plaintiffs, but this could be binding only on Jang Singh and not on the other defendants. As against the other defendants the plaintiffs could succeed only by proving that in fact they entered into possession of the land in dispute as recited in the sale deeds. However no cogent evidence in this behalf was led by the defendants. Rather the statements of their own witnesses shatter their (plaintiffs) case and show that Jang Singh continues to be in possession of the land in dispute. Jagat Singh Patwari PW4 admitted during cross-examination that Jang Singh was previously in possession of the land in dispute and even now he is in possession of this land. To the similar effect is the statement of Magher Singh PW6 who stated that wheat crop was standing in the land in dispute and it was sown by Jang Singh. Statements of these two witnesses examined by the plaintiff clearly show that Jang Singh continued to be in possession of the land in dispute. The plaintiffs I think cannot wriggle out of the statements of these two witnesses. The statements of these two witnesses clearly shows that the so called admission made by Jang Singh in the sale deed Ex.P1 to Ex.P4 and report Ex.PW4/1 about the delivery of possession to the plaintiffs is not correct. Therefore there can be no justification for the conclusion that the plaintiffs are in possession of the land in dispute . Hence the decision given by the trial Court on issue No. 1 holding that the plaintiffs are in possession of the land in the dispute is clearly erroneous and hence is hereby reversed.

My above discussion shows that plaintiff are not proved to be in possession of the land in dispute. Rather the evidence of the plaintiffs'' own witnesses show that Jang Singh continues to be in possession of the suit land. Therefore, the plaintiffs are not entitled to the relief of injunction prayed for by them. Hence I accept this appeal. The judgment and decree passed by the learned trial Court are set aside and I dismiss the plaintiffs'' suit. However, the parties are left to bear their own costs."

The only question of law which arises for consideration before me is as to whether the provisions of Section 53A of the Transfer of Property Act, 1882 (for short ''the Act'') are available to the plaintiffs in order to assert that there was part performance of the agreement to sell as they were put into possession?

I have heard Shri Munish Singla, learned counsel for the plaintiffs and Shri S. K. Markan, learned counsel for defendant Nos. 2 and 3 and have with their help perused the various documents and the record.

Shri Munish Singla has submitted that plaintiffs are entitled to the benefit of Section 53-A of the Act as possession has been delivered according to the recitals in the unregistered sale deeds. He further submits that no suit was maintainable by defendant Nos. 2 and 3 the minor sons of defendant No. 1, seeking permanent injunction as a cor-parcener cannot file such a suit against another corparcener. For the first proposition he relies on a judgment of the Allahabad High Court rendered in the case of Liladhar''s (supra). For the latter proposition, he relied on judgments reported as Sunil Kumar and Anr. v. Ram Parkash and Ors. 1988 2 P.L.R. 159 (S.C.) , Satinder Kaur v. Iqbal Singh AIR 1975 P&H 195 and Faridabad Complex Admn. v. Yadu 1997 2 P.L.R. 183 (S.C.).

Shri S. K. Markan, learned counsel for the defendants, on the other hand relied upon various judgments of the Supreme Court. He submits that reliance on Section 53-A of the Act can be placed only as a defence and it cannot be invoked for the enforcement of rights under the unregistered sale deed. He relied on the judgment of the Supreme Court in Delhi Motor Company and Others Vs. U.A. Basrurkar and Others, . He further relies on the judgments in the case of Ranchhoddas Chhaganlal v. Devaji Supdu Dorik and Ors. AIR 1977 S.C. 1517 and Patel Natwarlal Rupji Vs. Shri Kondh Group Kheti Vishayak and another, . He further contended that there is no specific issue claimed with regard to part performance of the contract by defendant No. 1. They being corparcener, defendant Nos. 2 and 3 are entitled to even argue on behalf of the defendant No. 1. For this proposition, he has relied on a judgment of this Court reported as Rameshwar Dass and Ors. v. Ram Gopal and Ors., 8 1997 2 P.L.R. 593 where various ingredients of Section 53-A of the Act have been discussed.

I have given my thoughtful consideration to the respective submissions of the learned counsel for the parties and I am of the considered opinion that there is no substance in this appeal and the same is liable to be dismissed.

The question of invoking the provisions of Section 53-A of the Act would arise only if it is proved that in part performance of the contract possession of the suit land was given. This can be done only if the finding of the lower appellate Court is reserved and it is held while reversing the finding that the plaintiffs were in actual physical possession. The finding with regard to possession returned by the lower appellate Court cannot be upset or any of the arguments advanced by the learned counsel for the plaintiffs. In various judgments of the Supreme Court, it has now been held that even if the High Court in second appeal is of the opinion that another view was possible, the finding returned by the lower appellate Court should not be interferred with as it would be beyond the scope of jurisdiction u/s 100 of the Code of Civil Procedure, 1908. Therefore, it is not a case where substantial question of law is raised as laid down by their Lordships of the Supreme Court in these cases of Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah, ; Smt. Satya Gupta Alias Madhu Gupta Vs. Brijesh Kumar, ; Chandrabhagabai and Others Vs. Ramakrishna and Others, , Ram Prasad Rajak Vs. Nand Kumar and BOrs. and Another, , M.G. Hegde and Others Vs. Vasudev D. Hegde, , State of Rajasthan Vs. Harphool Singh (Dead) Through His L.Rs., , M. Nadarkesavan Nadar v. Narayanannadar Kunjan Nadar , Baidyanath Bhattacharya v. S. Kar-makar 2000(9) S.C.C. 505 Manorama Thampuratti Vs. C.K. Sujatha Thampuratti and Others, Chandragauda and Anr. v. Shekhar Gauda S. Pittana Gaudar and Ors. 2000(1) S.C.C. 617 Thimmaiah and Others Vs. Ningamma and Another, , Mohd. Abdul Muqtedar v. Sk. Fakruddin 2000 ( 9) S.C.C. 384, G. Thankamma Amma v. N. Raghva Kurup 2000(9) S.C.C. 517, Ananta Kalappa Jaratakham v. Krishiappa 2000(9) S.C.C. 735 , Kempaiah (Dead) by Lrs. Vs. Doddanaraiah and Others, ; MD.Hadi Hussain v. Abdul Hamidl Choudhary and Ors., (2000) 10 SCC 248 , Shri Ajit Chopra Vs. Shri Sadhu Ram and Others, In these case their Lordships of the Supreme Court held that for the exercise of jurisdiction by the High Court u/s 100 of the Code the existence of substantial question of law is a sine qua non. It has further been held that where the findings of fact of the lower appellate Court are based on evidence, the High Court in second appeal cannot substitute its own finding on re-appreciation of evidence merely on the ground that another view was possible. Even in the cases concerning title and ownership, the findings of fact as recorded by the courts below are considered by their Lordships to the final. The same view has been reiterated in the recent judgment rendered in the case reported as Kulwant Kaur v. Gurdial Singh 2001 2 P.L.R. 492 (SC) wherein Section 41of the Punjab Courts Act has been declared ultra vires of Section 100 of the Code.

Even otherwise, the provisions of Section 53-A of the Act can be availed for enforcement of rights including the rights to protect possession as a shield to a claim and not as a sword. Moreover, this issue has neither been raised not at any stage to this effect was ever claimed.

For the reasons stated above, this appeal fails and is accordingly dismissed without any order as to costs.