Suman Lata v. Daya Ram & Ors.

Present: - Mr.B.R. Vohra, Advocate for the appellant. RAKESH KUMAR JAIN, J. **** This appeal has been preferred by defendant No.4 against the judgment and decree of both the Courts below by which the plaintiff and his brothers are held to be owners in possession of the suit land detailed in para No.1(a), 1(b) and 5 of the plaint including land bearing Rect. No.39 Killa No.23/1(4-0) and the defendants were consequently restrained from interfering in their possession over the suit land. The case set up by the plaintiff is that he along with his real brothers and cousin purchased the suit land detailed in para No.1(a), 1(b) and 5 of the plaint which included Killa No.39/23/1 (4-0), vide registered sale deed No.842 dated 20.7.1988, for a sale consideration of Rs.5,77,125/- and were put in physical cultivating possession but inadvertently, due to clerical mistake Killa No.39/23/1(4-0) was omitted to be mentioned in the sale deed by RSA No.1576 of 2010(O&M) - 2 - the deed writer although payment was made by the plaintiff for the said piece of land also to the vendor. Although, the plaintiff continued to be in possession of the land falling in Killa No.39/23/1 (4-0) (for short ‘the land in dispute’) but from the revenue record he ascertained that the said khasra number was not mentioned due to error of Commission, while executing the sale deed. It is the case of the plaintiff that he had approached defendant No.1 for executing a supplementary sale deed regarding land in dispute but he refused to accept his request and rather defendants No.1 and 2 sold the land in dispute to defendant No.3 who further sold to defendant No.4. While contesting the suit, defendants No.1 and 2 and defendants No.3 and 4 filed their separate written statements. Defendant No.2, who happened to be the vendor of the plaintiff denied the clerical mistake as alleged by the plaintiff in the execution of sale deed and has alleged that plaintiff and his family members knew that land in dispute was not sold to them. It is further alleged that the land in dispute was sold by defendant No.1 to Pardeep Kumar/defendant No.3 on 11.11.2005. Defendant No.3/Pardeep Kumar claimed himself to be a bona fide purchaser of having purchased the land in dispute for a sum of Rs.1,75,000/-. Defendant No.4 also sought protection of Section 41 of the Transfer of Property Act, 1882 on the ground of being a bona fide purchaser of the land in dispute from Pardeep Kumar vide sale deed No.1581 against sale consideration of Rs.3 lacs. On the pleadings of the parties, following issues were framed by the learned trial Court: - RSA No.1576 of 2010(O&M) - 3 - “1. Whether the plaintiff is owner in possession of the land to the extent of 1/3rd share as detailed in paras No.1(a), (b) and 5 of the plaint, as prayed for? OPP

2. Whether the defendants have no right to interfere in the peaceful possession of the plaintiff? OPD

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

4. Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the plaintiff has no cause of action to file the present suit? OPD

6. Whether the defendants are bonafide purchasers of the suit land? OPD

7. Relief.” The learned trial Court declared the plaintiff having 1/3rd share in the suit land mentioned in para No.1(a), 1(b) but his suit with regard to land mentioned in para No.5 of the plaint, which is the land in dispute as of now, was dismissed. The judgment and decree of the learned trial Court was challenged only by the plaintiff. The learned Appellate Court, after taken into consideration the evidence available on record, came to a firm finding of fact that before executing the sale deed (Ex.P-2), defendants No.1 and 2 had RSA No.1576 of 2010(O&M) - 4 - executed an agreement to sell with the plaintiff in which the land in dispute was also agreed to be sold along with land described as 1(a) and 1(b) in the plaint, for a total sale consideration of Rs. 5,77,125/-. At the time of agreement, imprest of Rs.77125/- was paid and the balance sale consideration of Rs.5 lacs was paid at the time of registration of the sale deed on 20.7.1988. Plaintiff was also delivered the possession of entire land measuring 81 kanals and since then he is continuing in possession. The plaintiff came to know about the mistake occurred in the sale deed on 3.11.2005 when he obtained the copy of the revenue record. The learned First Appellate Court observed that the reading of the agreement and sale deed as a whole makes it crystal clear that land in dispute was also sold by defendants No.1 and 2 to the plaintiff but due to oversight, the same could not be mentioned in the sale deed which was just a clerical and typographical mistake. Taking advantage of this error, defendants No.1 and 2 became dishonest and greedy and further sold the land in dispute to Pardeep Kumar/defendant No.3, who further sold the land to the appellant/Suman/defendant No.4. It was also observed that Pardeep Kumar/defendant No.3 could not take the plea of bona fide purchaser as he did not lead any evidence and he did not ever appear in the witness box. Appellant/Suman/defendant No.4 who purchased the suit land during the pendency of the suit also stayed away from the witness box. It is also observed that her husband Joginder, who appeared as DW1, did not utter a single word about defendant No.4/appellant to be a bona fide purchaser. Thus, appreciating the facts available on record, the learned First Appellate Court has decreed the suit in RSA No.1576 of 2010(O&M) - 5 - toto, declaring plaintiff to be the owner of the land in dispute as well. Aggrieved against the judgment and decree of the Court below, only defendant No.4 has come up in the appeal. Learned counsel for the appellant has vehemently argued that a simpliciter suit for declaration is not maintainable as plaintiff did not claim relief of possession and secondly the plaintiff could not have filed suit for declaration as only a suit for rectification of sale deed was maintainable. I have heard learned counsel for the appellant and have perused the record. Undisputedly, the agreement to sell (Ex.P-1) is with regard to land in dispute as well for which the plaintiff had agreed to pay the sale consideration. Admittedly, the entire sale consideration of 81 kanals of land including the land in dispute was paid by the plaintiff to the defendants No.1 and 2. The question is if the land in dispute, which is 4 kanal, was not intended to be sold by defendant No.1 to the plaintiff then there was no question of the defendant to accept sale consideration in respect of that 4 kanals of land but once the total sale consideration has been accepted as per agreement (Ex.P-1), the defendants cannot be allowed to take advantage of illiteracy of the plaintiff. Insofar as the first argument raised by learned counsel for the appellant is concerned, finding of the Court below is that the possession was delivered to the plaintiff when the sale deed was executed. Therefore, there was no question of praying for possession rather the plaintiff has rightly filed the suit for declaration and RSA No.1576 of 2010(O&M) - 6 - consequential relief of injunction, which has been granted by the learned First Appellate Court, restraining the defendants not to interfere in possession of the plaintiff. Thus, in my view, the suit in its present form was maintainable. Insofar as second argument is concerned, this plea was never raised before the Courts below. Moreover, the basic plea of defendant No.4/appellant has been rejected by the Courts below on the ground that she did not appear in the witness box to state that she is a bona fide purchaser against the valuable consideration without notice nor anything has been said by her husband in this regard, who has appeared as DW1. Thus, in totality, it is a case where defendant No.1 and 2 have acted dishonestly because after receiving the entire sale consideration of the land in dispute and taking advantage of the mistake occurred in the sale deed, sold the land in dispute further to defendant No.3, who has further sold to defendant No.4. In these circumstances, I do not find any merit in the present appeal and as such the same is hereby dismissed with costs.

01.07.2010 Vivek (RAKESH KUMAR JAIN) JUDGE