Narsi v. Ramesh & Ors.

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Shiv Kumar, Advocate, for the appellant Mr. RS Minhas, Advocate, for the respondents L.N. Mittal, J. (Oral) Plaitniff Narsi who was successful in the trial court but has been unsuccessful in the lower appellate court has filed the instant second appeal. Plaintiff filed suit for permanent injunction alleging that he is in cultivating possession to the extent of 1/3rd share in land measuring 3 kanals comprised of khasra nos. 456, 459 and 460 but the defendants who are strangers qua suit property were bent upon to interfere in lawful and peaceful possession of the plaintiff over the suit property by dispossessing him therefrom forcibly and illegally. Accordingly, the plaintiff sought permanent injunction restraining the defendants from interfering in Regular Second Appeal No. 3088 of 2008 -2- possession of the plaintiff over the suit property and from dispossessing him therefrom forcibly and illegally by raising construction or otherwise.

It was prayed that if the defendants succeed in raising construction over any part of the suit property during pendency of the suit, then decree for mandatory injunction directing defendants to remove the same be also granted. By amendment of plaint, the plaintiff pleaded that the defendants have constructed a jhaupri (hut) in the suit land during the pendency of the suit after issuance of order dated 22.4.1999 regarding status quo of possession over the suit property. Consequently, the plaintiff sought mandatory injunction for removal of the said hut. The defendants, inter-alia, pleaded that plaintiff sold his possessory rights in half share of the suit land to defendant no. 1 vide receipt dated 8.3.1988 for Rs 6000/- with consent of landlords/owners of the suit land and since then defendant no. 1 is in possession of the suit land to the extent of half share and plaintiff is not in possession thereof.

Learned Civil Judge (Junior Division), Nuh vide judgment and decree dated 10.5.2007 decreed the suit for permanent injunction and mandatory injunction and directed the defendants to remove the hut in question from the suit land and not to interfere in possession of the plaintiff over the suit land. However, first appeal preferred by defendants has been allowed by learned Additional District Judge, Nuh vide judgment and decree dated 21.5.2008 and thereby suit filed by the plaintiff has been dismissed. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the parties and perused the Regular Second Appeal No. 3088 of 2008 -3- case file. At the outset it has to be noticed that defendants claimed that defendant no. 1 has purchased half share of the plaintiff in suit land vide receipt dated 8.3.1988. Consequently, there is no dispute regarding remaining half share of the suit property which remained with the plaintiff.

Learned lower appellate court, therefore, committed grave illegality in completely non-suiting the plaintiff whereas the suit should have been decreed regarding half part of the suit land in which the defendants did not claim any right, title or interest. Consequently, substantial question of law arises as to whether the suit of the plaintiff could be dismissed in toto even when defendants did not claim any right, title or interest in half share of the suit property. The said question is accordingly answered in favour of the appellant-plaintiff and suit of the plaintiff-appellant has to be decreed for half share of the suit property. As regards the remaining half share which is claimed to have been purchased by defendant no. 1 vide receipt dated 8.3.1988 Ex. D1, learned counsel for the appellant vehemently contended that vide this receipt, plaintiff allegedly sold his possessory rights in half share of the suit land to defendant no.

1 for Rs 6000/- and therefore, this document require compulsory registration in view of section 17(1) of the Registration Act, 1908 but is unregistered and therefore, this document cannot be taken into consideration. It was also contended that the plaintiff has denied his thumb impression on this document Ex. D1 and the defendants have not examined any expert witness to prove the same and consequently, this document is not proved. Regular Second Appeal No. 3088 of 2008 -4- On the contrary, learned counsel for the respondents contended that document Ex. D1 in spite of being unregistered can be looked into for collateral purpose. It was also contended that defendants have examined Kishan DW2 and Rattan Lal DW3 two of the many witnesses of receipt Ex. D1 and both these witnesses examined by the defendants have stated about sale of the possessory rights in half of the suit land by plaintiff to defendant no.

1. Therefore, the defendants have duly proved receipt Ex. D1 by examining Kishan DW2 and Rattan Lal DW3 besides the testimony of Ramesh defendant no. 1 himself. On the contrary, the plaintiff has not examined any marginal witness of receipt Ex. D1 to depict that this receipt was not executed by the plaintiff. Consequently, there is no infirmity in the finding of the lower appellate court that receipt Ex. D1 has been duly proved to have been executed by plaintiff in favour of defendant no. 1. Mere non-examination of expert witness to prove thumb impression of the plaintiff on this receipt is not sufficient to discard the version of the defendants because defendants have examined two witnesses of this document to prove its execution by the plaintiff. Direct evidence of these two witnesses in addition to the testimony of defendant no. 1 himself is sufficient to prove its due execution. It is correct that receipt Ex.

D1 being for consideration of Rs 6000/- relating to transfer of possessory rights in half share of the suit land by plaintiff to defendant no. 1 required compulsory registration and is unregistered. Consequently, there may not have been valid transfer of title by way of this receipt. However, nevertheless as rightly observed by lower appellate court, this receipt can be taken into consideration for collateral Regular Second Appeal No. 3088 of 2008 -5- purpose. In view of this receipt, the lower appellate court has rightly concluded that defendant no. 1 is in possession of half portion of the suit land since 8.3.1988, the date of execution of receipt Ex. D1. Consequently, the plaintiff was not in possession of the half portion of the suit land at the time of filing of the suit. Entry in jamabandi for 1993-94 Ex. P1 stands rebutted by the evidence of the defendants including the receipt Ex. D1. In addition to the aforesaid, the plaintiff has not been able to prove that construction of hut in half portion of the suit land was raised by defendants during the pendency of the suit.

In other words, it is not proved that plaintiff was dispossessed from half portion of the suit land during the pendency of the suit. On the contrary, the plaintiff was not in possession of half portion of the suit land even at the time of filing of the suit. Consequently, suit for permanent and mandatory injunction alone is not maintainable as the plaintiff should have sued for seeking relief of possession and not for relief of injunction only. For the reasons aforesaid, the instant second appeal is partly allowed and judgments and decrees of the courts below are modified and suit filed by the plaintiff-appellant is decreed regarding half portion of the suit land restraining the defendants from interfering in possession of the plaintiff thereon and from dispossessing him therefrom whereas the suit regarding remaining half portion of the suit land as described in receipt Ex. D1 is dismissed. In view of divided success, the parties are left to suffer their respective costs throughout. September 16, 2010 'dalbir' ( L.N. Mittal ) Judge Regular Second Appeal No. 3088 of 2008 -6-