Smt. Kavita vs Harmesh Singh (Since deceased and represented through LRs.)

L.N. Mittal, J.—This is second appeal by plaintiff Kavita, who was successful in the trial court, but has been non-suited by the lower appellate court. Appellant-plaintiff filed suit against defendant-respondent Harmesh Singh (since deceased and represented by his legal representatives) alleging that out of plot measuring about 08 marlas, the plaintiff purchased 04 marlas from Rajinder Kumar Sood, vide agreement dated 04.02.1986 and purchased the remaining 04 marlas from Shanti Narain vide sale deed dated 18.01.1988 and thus became owner in possession of the entire plot. Out of it, the plaintiff-sold western half part measuring 04 marlas to defendant, vide sale deed dated 21.02.1994. Thus, defendant is owner in possession of western half part, whereas plaintiff is owner in possession of eastern half part, which is the subject matter of the suit. The plaintiff alleged that just before filing of the suit, defendant constructed a small bathroom and a room in the plaintiff''s plot and threatened to interfere in her possession thereon. The plaintiff sought permanent injunction restraining the defendant from taking forcible possession of the suit plot measuring about 04 marlas from the plaintiff and also sought mandatory injunction directing the defendant to remove the construction recently made by him in the suit plot in the shape of a small bathroom and a room.

The defendant alleged that he is owner in possession of the entire plot measuring 71/2 marlas. The defendant denied knowledge of Shanti Narain and Rajinder Kumar being owners thereof. The defendant alleged that he is in continuous peaceful possession of the entire plot since the year 1989 and has raised construction therein legally. He is legal owner in possession thereof through valid means. Plaint averments were broadly controverted. Some other pleas were also raised.

Learned Civil Judge (Junior Division), Kapurthala, vide judgment and decree dated 19.05.2008, decreed the plaintiffs suit. However, first appeal preferred by the defendant has been allowed by learned District Judge, Kapurthala, vide judgment and decree dated 28.05.2009 and thereby, suit filed by the plaintiff has been dismissed. Feeling aggrieved, plaintiff has filed this second appeal.

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

Counsel for the plaintiff-appellant contended that plaintiff has proved her case by documentary evidence and her suit was rightly decreed by the trial court. It was contended that finding of the lower appellate court against the plaintiff-appellant is perverse and illegal being based on misreading and misappreciation of evidence.

On the other hand, counsel for defendant-respondent contended that pursuant to agreement dated 04.02.1986, the plaintiff did not pay the remaining sale consideration of Rs. 5,000/- out of total sale consideration of Rs. 10,000/- nor any sale deed has been executed in her favour, and therefore, she is not the owner of the said portion of the plot mentioned in the said agreement.

I have carefully considered the rival contentions.

Vide agreement dated 04.02.1986 (Ex. P-1), the plaintiff agreed to purchase half portion of the plot for Rs. 10,000/- and paid Rs. 5,000/- to the vendor and came in possession thereof. Vide sale deed dated 18.01.1988 (Ex. PW-5/2), the plaintiff purchased the remaining half part of the aforesaid plot and became owner in possession thereof. Plaintiff has also produced on record copy of sale deed dated 21.02.1994 (Ex. PW-5/3), whereby she sold western half part of the plot to the defendant-respondent. In view of this documentary evidence, plaintiff''s case was rightly held to be proved by the trial court. Defendant has derived title over half western part of the plot from the plaintiff. The defendant is estopped from disputing her title. In the boundaries in the sale deed Ex. PW-5/3, it is clearly mentioned that there is property of vendor plaintiff towards east and north of the property, which was sold by the sale deed. Cumulative effect of all these documents is that defendant is owner in possession of the western part and plaintiff is owner in possession of the eastern part which is subject matter of the suit.

Counsel for the defendant-respondent also contended that suit for injunction is not maintainable as plaintiff should have claimed the relief of possession, as was also mentioned in notice dated 05.12.2002 (Ex. PW- 5/6), issued on behalf of plaintiff before filing of suit. The contention, although apparently attractive, cannot be accepted. The defendant raised construction of a small bathroom and a room in the suit property just before filing of the suit. Consequently, plaintiff sought direction for removal of the said construction along with permanent injunction. In view of this relief claimed by the plaintiff, it cannot be said that the suit is not maintainable. It may be mentioned that pleadings in Moffusil Courts are loosely drafted and are not required to be interpreted rigidly or literally. The plaintiff herself pleaded that the defendant had recently raised the aforesaid small construction in the suit property just before filing of the suit. Consequently, the plaintiff sought direction for removal thereof. In this view of the matter, it cannot be said that the suit of the plaintiff cannot be decreed without seeking relief of possession.

The contention, that pursuant to agreement dated 04.02.1986, the plaintiff did not pay the remaining sale consideration and that sale deed has not been executed in her favour, is not available to the defendant-respondent. The said contention may be available to appellant''s vendor Rajinder Kumar Sood, but is not acceptable at the instance of defendant-respondent.

For the reasons aforesaid, I find that the finding of the lower appellate court against plaintiff-appellant is perverse and illegal and is based on misreading and misappreciation of evidence giving rise to substantial question of law to this effect for adjudication in this second appeal. The said substantial question of law is answered in favour of plaintiff-appellant. Accordingly, the instant second appeal is allowed. Judgment and decree of the lower appellate court are set aside. Judgment and decree of the trial court, decreeing the suit of the plaintiff-appellant, are restored, leaving the parties to suffer their respective costs throughout.