Prem Kumar Chawla and others vs Vijay Singh and another

M.M. Kumar, J.

This revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, `the Code'') is directed against the order dated 9.11.2000 passed by the Additional District Judge, Kurukshetra dismissing the appeal of the defendantpetitioners filed against the order dated 26.7.1999 of the Civil Judge (Sr. Division), Kurukshetra. The Civil Judge vide his order dated 26.7.1999 has allowed an application filed by the plaintiffrespondent No. 1 restraining the defendantpetitioners from interfering in his peaceful possession and also from dispossessing him from the suit land as described in paragraph 1 of the plaint till the decision of the suit.

Brief facts of the case which led to the filing of the present revision petition and necessary for deciding the controversy raised before me are that plaintiffrespondent No. 1 filed Civil Suit No. RBT766 of 2000, instituted on 6.7.1995/27.11.2000 for permanent injunction claiming that he is owner in possession of the suit land and defendantpetitioners are neither owners nor in possession thereof. According to the averments made in the suit, the defendantpetitioners are alleged to be highhanded persons who formed unlawfully assembly and made an attempt to interfere in the peaceful possession of the plaintiffrespondent No. 1 by taking forcible possession. However, due to timely intervention of the plaintiffrespondent No. 1 and other respectables, the defendantpetitioners were not able to interfere in the peaceful possession of the plaintiffrespondent No. 1. Along with the suit an application under Order XXXIX, Rules 1 and 2 for adinterim relief of injunction was also filed which was allowed by the Civil Judge and the order passed by the Civil Judge has been upheld by the Additional District Judge. The Additional District Judge has upheld the order of the Civil Judge principally on the ground that the revenue record i.e. the jamabandies for. the years 198990 and 199495 as well as khasra Girdawaries upto Kharif 1998 show that the plaintiffrespondent No. 1 was in possession of the suit land. The defendantpetitioner has placed reliance on an agreement dated 4.9.1993 alleging that the plaintiffrespondent No. 1 executed this agreement to sell the land measuring 52 kanals 16 marlas for a consideration of Rs. 53,13,000/ in favour of the defendantpetitioners and their associate. It has further been claimed that earnest money amounting to Rs. 8,65,000/ was received by the plaintiffrespondent No. 1 and the possession was delivered on 4.9.1993 when the agreement was executed and the earnest amount was paid. It is further claimed by the defendantpetitioners that the plaintiffrespondent No. 1 executed another agreement dated 27.8.1994 concerning the same land enhancing the sale consideration to Rs. 58,13,000/, and in lieu thereof the time for execution of the sale deed was extended upto 25.6.1999. It is also claimed that the plaintiffrespondent No. 1 delivered possession of 56 kanals 12 marlas of land to defendantpetitioner No. 1 and his associates. The delivery of possession and receipt of amount of Rs. 1,65,000/ was duly acknowledged by plaintiffrespondent No. 1 by executing an affidavit on 27.8.1994 and since then the defendantpetitioners have been in cultivating possession of the suit land. It has been alleged by the defendantpetitioners that in order to grab a sum of Rs. 10,30,000/ earnest money paid to plaintiffrespondent No. 1, he has filed a false and frivolous suit. Brushing aside both the agreements to sell and the receipt dated 4.9.1993 and 27.8.1994 acknowledging payment of Rs. 8,65,000/ and Rs. 1,65,000/, both the Courts below reached the conclusion that entries in jamabandies for the years 198990 and 199495 and khasra girdawaries upto kharif 1998 which are much later to the date of receipt and agreement to sell has to be given credence. On that basis both the Courts have reached the conclusion that plaintiff respondent No. 1 is in possession. Another reason given by both the Courts below for reaching this conclusion is that if the version of the defendantpetitioners is to be accepted, then they would have filed a suit for specific performance which has never been filed.

I have heard Shri Y.K. Sharma, learned counsel for the defendant petitioners and Shri Anil Khetarpal, learned counsel for plaintiffrespondent No. 1 and have perused the record with their assistance.

Shri Y.K. Sharma has argued that both the agreements executed on 4.9.1993 and 27.8.1994 are valid in the eyes of law. An amount of Rs. 8,65,000/ and Rs. 1,65,000/ has been paid at the time of execution of both these agreements and the defendantpetitioners were given possession, The suit has been filed with mala fide intention to misappropriate the amount of earnest money and also to divest the defendantpetitioners of their possession. In support of his arguments, learned Counsel referred to paragraph 4 of the order dated 26.7.1999 passed by the Civil Judge asserting that the stand with regard to obtaining the papers concerning agreements to sell fraudulently was taken in the replication. He has further argued that both the agreements to sell cannot be considered to have resulted from fraud because the plaintiffrespondent No. 1 in the rejoinder to the legal notice sent by the defendantpetitioners has averred that the plaintiffpetitioners have visited the office of Tehsildar/Sub Registrar, Shahbad Markanda on 23.6.1995 and 27.6.1995 for execution of the sale deed i.e. the extended dates fixed for execution of the sale deeds. Had the agreement to sell been the result of fraud, then there was no necessity for him to visit the office of Tehsildar/Sub Registrar, Shahbad Markanda on 23.6.1995 and 27.6.1995. Therefore, according to the learned counsel, once the defendantpetitioners have been put in possession in pursuance of the part performance of the agreement to sell, no interim order could be issued restraining the defendantpetitioners from interfering in possession of the plaintiffrespondent No. l. He has also referred to Section 53A of the Transfer of Property Act, 1882 (for brevity, `the Act'') to argue that both the Courts below committed a grave error by not applying Section 53A of the Act. Apart from the agreement to sell, an affidavit dated 27.8.1994 sworn in by the plaintiffrespondent No. 1 in favour of the defendantpetitioners and their associates has also been relied claiming that it would clearly establish that the possession of the suit land was delivered to them.

Shri Anil Khetarpal, learned counsel for the plaintiffrespondent No. 1 has argued that the stand taken by the plaintiffrespondent No. 1 right from the beginning is that under the grab of seeking setting aside of the judgment and decree dated 2.11.1992 passed in Civil Suit No. 1265 of 1992, titled Amarjit Singh v. Vijay Singh, his signatures were obtained on 3/4 blank papers and have been used for recording agreement to sell by the defendantpetitioners. In Civil Suit No. 1033 of 1993, titled Vijay Singh v. Amarjit Singh, the judgment and decree dated 2.11.1992 passed in Civil Suit No. 1265 of 1992 was set aside. Therefore, the stand of the plaintiffrespondent No. 1 is that prior to the judgment and decree dated 9.9.1993, his signatures were obtained by the defendantpetitioners in order to get the exchange deed set aside and the document in question i.e. agreement to sell are dated 4.9.1993. According to the learned counsel, had there been genuine agreement to sell, the defendantpetitioners would have first filed a suit for specific performance rather than remaining silent and till date, no suit for specific performance has been filed. Therefore, the discretionary relief given by both the Courts below deserves to be upheld. The learned counsel has placed reliance on a judgment of the Supreme Court in the case of The Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and another v. Ajit Prasad Tarway, Manager (Purchase and stores) Hindustan Aeronautics Ltd. Balanager, Hyderabad, A.I.R. 1973 S.C. 76 to argue that this Court would not exercise jurisdiction under Section 115 of the Code unless it is shown that the order passed by the Courts below was without jurisdiction. He has also placed reliance on two judgments on this Court in cases of Man Singh and another v. Shri H.S. Kohli, 1997(2) RCR(Civil) 370 (P&H) : (19971)115 PLR 643 and Anup Singh and another v. Smt. Chander Kanta and others, 1998(2) RCR(Civil) 341 (P&H) : (19981)118 PLR 818 to argue that in any case agreement to sell itself would not create any title, right or interest in the property. Therefore, the revision petition of the defendantpetitioners is liable to be dismissed and the order passed by the Additional District Judge must be upheld.

I have thoughtfully considered the rival contentions raised by learned counsel for the parties and am of the view that this revision petition is devoid of merit and is thus liable to be dismissed. Both the agreements to sell dated 4.9.1993 and 27.8.1994 do not support the contention of the defendantpetitioners claiming that they were put in possession in pursuance of the part performance of the agreement to sell and Section 53A of the Act should govern the rights of the parties. Had this been the factual position, the revenue authorities would have made the entries in their record. However, jamabandies for the years 198990 and 199495 as well as Khasra Girdawaries upto Kharif 1998 show that the plaintiffrespondent No. 1 has been continuing in possession of the suit land. Moreover, the stand of plaintiffrespondent No. 1 that some documents were got signed prior to the passing of the decree in Civil Suit No. 1023 of 1993, lends substantial support to his case because the judgment and decree was passed on 9.9.1993 and the agreement to sell is dated 4.9.1993. Still further two judgments of this Court in Man Singh and Anup Singh''s cases (supra) have categorically laid down that an agreement to sell by itself does not create any right in the property. It is well settled that this Court would not exercise jurisdiction under Section 115 of the Code unless some jurisdictional error is pointed out. In the case of Hindustan Aeronautics (supra), their Lordships observed as under :

"In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under S. 115 of the Civil Procedure Code. See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jadhav, (1996)1 S.C.R. 102 : (A.I.R. 1996 S.C. 153), and D.L.F Housing & Construction Co. Pvt. Ltd., New Delhi v. Sarup Singh, (1970)2 S.C.R. 368 : (A.I.R. 1971 S.C. 2324)."

For the reason stated above, this revision petition fails and the same is dismissed.