Yash Pal v. CORUM

factual matrix of pleadings and evidence brought on record by the parties in detail, therefore, there appears to be no necessity to again reproduce and repeat the same. However, the epitome of the facts, relevant for the purpose of disposal of the present second appeal and emanating from the record, is that Yash Pal son of Gurdas Mal appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the present suit for a decree for permanent injunction restraining Prem Chand son of Rattan Chand respondent- defendant (for brevity “the defendant”) from interfering in his possession over the property in dispute, inter-alia, pleading that although he had sold the plot in question to the defendant, vide sale deed dated 4.5.1998 (Ex.D1) for a total consideration amount of Rs.40,000/-, but he received only Rs.5000/- from him (defendant) at the time of registration of sale deed. According to the plaintiff, the defendant entered into an agreement on the same day and promised that he will pay the amount of Rs.35,000/- to him till 10.5.1998 and would take the possession of the plot thereafter. He repeatedly asked the defendant to pay the balance amount of Rs.35,000/- but Regular Second Appeal No.1291 of 2010 2 in vain.

2. Levelling a variety of allegations, in all, according to the plaintiff that instead of paying the balance amount of Rs.35,000/- of sale consideration, the defendant illegally threatened to dispossess him (plaintiff) from the suit property. On the basis of the aforesaid allegations, the plaintiff filed the suit, in the manner indicated here-in-above.

3. The defendant contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, locus standi of the plaintiff and suppression of facts. On merits, the case set up by the defendant was that the plaintiff had already sold the suit property to him, vide registered sale deed dated 4.5.1998, received the total consideration amount of Rs.40,000/- at the time of registration of sale deed and delivered the possession of the plot at the time of execution of the sale deed. Thus, the plaintiff is neither owner nor in possession of the suit property. It will not be out of place to mention here that the defendant has stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

4. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication.

5. In the wake of the pleadings of the parties, the trial Court framed the following issues for adjudication:-

1. Whether the plaintiff is entitled to permanent injunction as prayed for?OPP

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

3. Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD

4. Relief. Regular Second Appeal No.1291 of 2010 3

6. The parties produced oral as well as documentary evidence on record, in order to substantiate their respective pleas.

7. The trial Court, after taking into consideration the evidence on record, dismissed the suit of the plaintiff, vide impugned judgment and decree dated 8.9.2005. 8 Aggrieved by the judgment and decree of the trial Court, the appeal filed by the plaintiff was also dismissed by the First Appellate Court, vide impugned judgment and decree dated 8.6.2009.

9. The plaintiff still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

10. Having heard the learned counsel for the appellant, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

11. The main celebrated argument of the learned counsel that the defendant did not make the payment of balance amount of the sale consideration, agreed to pay the same subsequently and executed the agreement in this respect and since the plaintiff is in possession of the plot in question (subject matter of sale deed (Ex.D1)), so, he is entitled for the relief claimed, is not only devoid of merit but misplaced as well.

12. It is not a matter of dispute that the plaintiff had already sold the property in dispute, vide sale deed (Ex.D1), in which, there is a clear recital of delivery of the possession to the defendant. The subsequent agreement, in regard to payment of balance amount, purported to have been executed by the defendant, appears to be a fabricated document because attesting witnesses namely Bishan Dass and Mohinder Pal were not examined to prove its execution. The mere examination of PW1 Regular Second Appeal No.1291 of 2010 4 Smt.Bachni Devi, who is none else but mother of the plaintiff, is not sufficient in this relevant connection, particularly when even the agreement does not bear the signatures of the plaintiff. The mere fact that the defendant did not produce any evidence except his affidavit, is no ground to accept the claim of the plaintiff, as he has to prove his own case by producing cogent evidence. He cannot take the benefit of weakness of the evidence of the defendant. Hence, the plaintiff is not proved to be in possession of the plot in dispute.

13. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the plaintiff, have already been duly considered and dealt with by the Courts below, in this relevant connection, .

14. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the plaintiff in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court as well as the first Appellate Court has recorded the concurrent findings of fact that the plaintiff has already sold and handed over the possession of the disputed plot to the defendant, vide registered sale deed (Ex.D1) and hence, as the plaintiff is not proved to be in possession of the same, therefore, he is not entitled to claim any injunction against the true owner. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the plaintiff, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this Regular Second Appeal No.1291 of 2010 5 regard.

15. Meaning thereby, the entire gamut/matter revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the courts below as contemplated under section 100 CPC, in the obtaining circumstances of the instant case,.

16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant.

17. In the light of the reasons mentioned here-in-above, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) Judge

30.6.2010 AS