Sohan Lal vs Hari Singh

B. Rai, J.—This Regular Second Appeal arises out of a Civil Suit No. 319 of 1976 against the judgment and decree, dated October 11, 1979 passed by the learned Additional District Judge, Karnal, reversing the judgment and decree, dated September 27, 1978 of the trial Court.

The plot ABCD described in the site plan Exhibit DW1/1 originally belonged to one Mani Ram son of Daya Ram resident of Mohalla Saudagaran, Thanesar. That plot was in possession of Sohan Lal plaintiffappellant as a tenant under Mani Ram till January 2, 1970. He set up a poultry shed and a Kotha in the plot in question with prior permission of Mani Ram. That Plot was purchased by him along with the poultry shed and Kotha existing thereon vide sale deed, dated January 2, 1970 for a consideration of Rs. 99/. It was further pleaded that he was in possession of the Plot in question as a tenant under Mani Ram up to January 2, 1970 and from January 2, 1970 to October 20, 1970 as owner. On October 20, 1970, Hari Singh with the help of defendants 2 to 7 took forcible possession of the Plot. It was also averred in Civil Suit No. 435 of 1970, (Exhibit P1) between the parties to this case, the Court of the then Subordinate Judge, Karnal, vide his judgment and decree, dated January 27, 1973, held that the plaintiff (Sohan Lal) was owner of the Plot in question and that the finding regarding the title to the Plot in question has become res judicata between the parties to this case and Sohan Lal filed a suit for possession as owner of the Plot in question claiming continuing damages at the rate of Rs. 10/ with effect from October 20, 1970 till the possession of the Plot in question was delivered to him.

The suit was contested by defendant No. 1 on the ground that suit was barred by the provisions of Order II, rule 2, Code of Civil Procedure; that the finding about the title to the Plot in question was not res judicata; that the suit was not correctly valued for purposes of courtfee and jurisdiction; that the suit was bad for misjoinder of parties as defendants 2 to 7 had no interest in the Plot in question; that the plaintiff was estopped by his act and conduct from filing the suit as he used to be present at the time defendant No. 1 raised the construction; and that the suit was barred by time as the plaintiff or his predecessorininterest had never been in its possession at any time within twelve years before the filing of the suit. The allegation of defendant No. 1 is that the Plot in question is an evacuee property; that it vested in the Custodian, who sold it to Hans Raj and said Hans Raj later on sold it to defendant No. 1, vide a registered Sale Deed, dated September 1, 1966 for a consideration of Rs. 200/. It was also pleaded that defendant No. 1 had constructed certain Kothas on this Plot at his own expenses after getting its plan sanctioned by the Municipal Committee, Thanesar. The allegation that the plaintiff was dispossessed on October 20, 1970 was controverted by defendant No. 1, alleging that he is in possession of the Plot in question as a lawful owner thereof.

The pleadings of the parties gave rise to the following Issues :

Whether the plaintiff is owner of the plot in question ? OPP

If Issue No. 1 is proved, in what capacity the defendants are in possession ? If so, the effect of that possession over the property in dispute ? OPD

Whether the site plan has not been properly described in the plaint ? If so, its effect ? OPD

Whether the present suit is barred under Order 2 Rule 2 C.P.C. ? OPD

Whether the judgment in the previous litigation between the parties operates as res judicata ? O.P. Parties

Whether the suit is not properly valued for purposes of court fee and jurisdiction ? If so, what it should have been ? Onus on Parties

Whether the suit is bad for misjoinder of parties ? OPD

Whether the suit is not maintainable in the present form ? OPD

Whether the plaintiff is estopped from bringing the suit by his own act ? OPD

Whether the suit is time barred ? OPD

Relief.

Issues 4, 5 and 6 were treated as preliminary Issues. Issues 4 and 5 were decided on October 16, 1976, whereas Issue No. 6 was decided vide order, dated July 19, 1976. Under Issue No. 4, it was found that the earlier suit was for permanent injunction restraining defendants from interfering with the proprietary and possessory rights of the plaintiff and the present is a suit for possession of the suit property which has obviously been prompted by a finding in that suit that the plaintiff was not in possession of the suit property. Accordingly, this Issue was decided in favour of the plaintiff. Under Issue No. 5, it was observed that in the earlier suit the plaintiff had claimed himself to be the owner in possession of the suit property, but the Court found that plaintiff was owner but not in possession of the suit property. Accordingly, this Issue was decided in favour of the plaintiff. Under Issue No. 6, it was held that the suit was correctly valued for purposes of courtfee and jurisdiction.

Under Issue No. 1, it was held that in the former suit, Sohan Lal plaintiff was found to be owner but not in possession of the Plot in question. Therefore, this Issue was decided accordingly. Issues 2 and 10 were taken up together. It was observed that as recited in the Sale Deed, defendant No. 1 entered into possession with effect from September 1, 1966, the date of execution of Sale Deed. The present suit was filed on April 6, 1973. Defendant No. 1 did not acquire any title to the Plot in question by virtue of its possession for less than twelve years and it was held that the suit was filed within time. Both these Issues were disposed of accordingly. While dealing with Issue No. 7, the learned trial Subordinate Judge referred to Order 1, Rule 9, Code of Civil Procedure, which provides that no suit shall be defeated by reason of the misjoinder of parties and the Court can decide a suit so far as rights and interest of the affected parties are concerned. This Issue, therefore, was decided accordingly. Under Issue No. 8, it was held that finding regarding title of the Plot in question operates as res judicata. This Issue was accordingly decided against Hari Singh defendant No. 1. Under Issue No. 9, it was found that there was no evidence to corroborate the evidence of defendant No. 1. The expression ''estoppel'' is of strong connotation and there being no adequate evidence to hold that the plaintiff is estopped by his act and conduct from filing the suit, this Issue was accordingly decided in favour of the plaintiff and against defendant No. 1. The suit of the plaintiff was decreed for possession of Plot ABCD with proportionate costs, as the claim for damages was not pressed.

In appeal preferred by Hari Singh defendant, only finding under Issue No. 1 was challenged before the learned Additional District Judge, who relying on commentaries on the Transfer of Property Act, by Mulla, 1973 Sixth Edition, Page 306, observed that Sale Deed Exhibit P1 being unregistered does not confer any title on plaintiffrespondent No. 1. Consequently, he was not held competent to claim possession of the property. Hence, finding of the trial Court on Issue No. 1 was set aside and suit of the plaintiffrespondent was dismissed, leaving the parties to bear their own costs, by the learned Additional District Judge, Karnal, vide his judgment and decree, dated October 11, 1979, as stated in the earlier part of the judgment.

It may be mentioned here that the case came up for regular hearing on February 26, 1997. Despite several pass overs, counsel for the respondents did not put in appearance. As such, the case was adjourned to February 27, 1997 as partheard. Even today, despite the message sent, counsel for the respondents has not put in appearance. Therefore, I have heard learned counsel for the appellant and have carefully gone through the record.

A perusal of Exhibit P1 would show that in the year 1970, Sohan Lal filed a Civil Suit No. 485 of 1970 on October 13, 1970 against Hari Singh and six others for permanent injunction restraining them from interfering in his peaceful possession on the allegations that he was exclusive owner and in possession of the suit property for the last 12/13 years. In that suit, after full trial, it was held that plaintiff was owner but was not in possession; and, as such, his suit was dismissed. In the instant case, he claims the possession of the suit property as owner on the basis of Sale Deed, Exhibit DW2/1. The learned Additional District Judge while hearing the appeal came to the conclusion that the Sale Deed in favour of Sohan Lal was for Rs. 99/ but it being not registered, no valid title to the property passed in his favour. This conclusion on the face of it appears to be erroneous. Section 54 of the Transfer of Property Act, 1882, deals with the definition of "Sale" and as to how the sale is to be made. It reads as under :

"54. "Sale" defined. "Sale" is a transfer of ownership in exchange for a price paid or promised or partpaid and partpromised.

Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property."

It clearly stipulates that if the sale is of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as buyer directs, in possession of the property. Sohan Lal purchased the suit property from Mani Ram son of Daya Ram for Rs. 99/ vide unregistered Sale Deed, dated January 2, 1970. It is recited in the Sale Deed itself that Sohan Lal is in possession of the Plot in question for the last 12/13 years and a poultry shed and a kotha have been constructed thereon. It goes to show that when the Sale Deed was executed in favour of Sohan Lal on January 2, 1970, he was already in possession of the suit property for the last 12/13 years and he had constructed one poultry shed and a Kotha thereon. Sohan Lal while appearing as his own witness, stated that he was in possession of the suit property as tenant under Mani Ram for the last 16/17 years and he had constructed a poultry shed and a small Kotha thereon. DW3 Ved Parkash is the attesting witness of Sale Deed Exhibit DW2/1 executed by Hans Raj in favour of Hari Singh. It was admitted by him in his crossexamination that the Plot in question originally belonged to Mani Ram. It was taken on rent by Sohan Lal in 1949. He started running a poultry farm in it and in the year 1970 purchased it from Mani Ram. It was also stated by him that poultry farm existed thereon. In October, 1970 the poultry farm of Sohan Lal was demolished by Hari Singh and other defendants. Thus, it is clearly proved that when the Plot in dispute was purchased by Sohan Lal from Mani Ram, Sohan Lal was already in possession of the same for the last many years. Therefore, at the time of execution of Sale Deed Exhibit P1, it was not necessary that he should first vacate the premises and then his vendor would deliver the possession to him in order to complete the sale of property, of a value less than one hundred rupees. This aspect of the case was not considered by the learned Additional District Judge while reversing the findings of the trial Court. Therefore, the requirement of section 54 of the Transfer of Property Act, 1882, was satisfied, as the possession of the property sold to Sohan Lal by Mani Ram was already with Sohan Lal. Thus, the sale was complete and valid title had passed to Sohan Lal, though the Sale Deed Exhibit P1 for Rs. 99/ is not registered one. In Suraj Prasad v. Mt. Aguta Devi and others, A.I.R. 1959 Patna 153,rned Judges constituting the Full Bench after going through a number of authorities, observed and concluded in Para 22 of the report as under :

"On a consideration of the authorities which I have referred to above, I am of the opinion that the view expressed in the different decisions of this Court with the exception of Puran Mahton v. Bhoge Mahton, AIR 1946 Pat 81 ect. Oral sale accompanied by delivery of possession is one of the modes in which the sale of a tangible immoveable property of the value of less than Rs. 100/ can be effected. I do not see any good reason why this mode of transfer should not be available to a person who sells a property of such low value, simply because the vendee is in possession of the property under some legal right on the date of the sale.

The law cannot contemplate that such a sale can only be effected by the circuitous method of getting the vendee to give up possession temporarily so that he may be put back in possession by the vendor. In my judgment, all that is necessary is that the vendor should do whatever he can do in the circumstances so as to indicate definitely and without any ambiguity an intention to pass the title and also possession as owner to the vendee. He can do so by making appropriate declarations or by doing such acts as are necessary."

In view of the discussion above, the appeal succeeds, the judgment and decree, dated October 11, 1979 are set aside and those of the trial Court are restored. The appellant shall be entitled to the costs throughout.