Mehar Bhan Singh Vs. Lachhman Singh and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1070594
CourtPunjab and Haryana High Court
Decided OnNov-20-2012
AppellantMehar Bhan Singh
RespondentLachhman Singh and anr.
Excerpt:
rsa no.4703 of 2010 (o&m) #1# in the high court for the states of punjab and haryana at chandigarh rsa no.4703 of 2010 (o&m) date of decision:20. 11.2012 mehar bhan singh ….appellant vs. lachhman singh and anr. ….respondents coram: hon’ble mr. justice jaswant singh present: mr. vijay kumar jindal, advocate for the appellant. mr. rajesh bansal, advocate for the respondents. jaswant singh, j 1.plaintiff-appellant is in second appeal against the judgment and decree of reversal dated 31.7.2010 passed by the learned addl. district judge, kurukshetra whereby the appeal of the defendants- respondents filed against the judgment and decree dated 10.12.2009 passed by the learned civil judge (jr. division), kurukshetra partly decreeing the suit of the plaintiff-appellant, has been accepted while setting aside the judgment and decree of the learned trial court.2. brief facts of the case are that the plaintiff-appellant filed a suit for possession of a house in dispute situated in village dakala, tehsil thanesar, district kurukshetra as described in the head note of the plaint along with mesne profits at the rate of rs.2500/- per month with effect from 15.4.2006 till delivery of actual possession of the said house against the defendants-respondents being licensee. it was rsa no.4703 of 2010 (o&m) #2# submitted that the defendants, who were known to the plaintiff, on shifting from village bibipur to their village dhakala, tehsil thanesar, were given the possession of the house in dispute on 15.4.2006 for a period of four months. after expiry of the said period since they refused to vacate the premises, a legal notice (ex.p.6) in the month of september 2006 was served to vacate the premises. defendants contested the suit by filing a written statement and submitted that they had purchased the house in question from the plaintiffs through mediators sukhdev singh and gurnam singh, residents of village dhakala, who are known to the plaintiff, by way of an oral agreement to sell for a total consideration of rs.4,96,000/-. it was further submitted that the earnest money of rs.60000/- was paid by them on 8.5.2005 in the presence of the aforesaid mediators and possession was handed over to the defendants whereas balance consideration was deposited in the account of the mediator-sukhdev singh on 4.5.2006, who withdrew the same and gave the amount to the plaintiff.3. on the basis of the pleadings, issues were framed and on evaluation of the evidence adduced on record, learned civil judge (jr. division), kurukshetra after considering the whole matter came to the conclusion that no such agreement to sell or transaction took place as claimed by the defendants and their whole case is false and bogus and reference in this regard can be made to para 30 of its judgment. learned trial court while further concluding its reasoning in para 36 came to the conclusion that the defendants have failed to prove their title over the house in question by taking recourse to section 53-a of the act being licensee and rsa no.4703 of 2010 (o&m) #3# after termination of their licence vide legal notice (ex.p.6), the plaintiff is entitled to decree of possession and were directed to do the same. accordingly, the learned trial court vide judgment and decree dated 10.12.2009 partly decreed the suit qua possession but dismissed regarding mesne profits.4. however, learned first appellate court while allowing the appeal by taking recourse to section 53-a of the act came to the conclusion that the defendants-appellants are in possession of the house in dispute as owner since 15.4.2006 and they are not licensee as claimed by the plaintiff and the version of the plaintiff has been observed to be false on the basis of the rates of property having been escalated. thus, the appeal was accepted by the learned addl. district judge, kurukshetra vide judgment and decree dated 31.7.2010 thereby dismissing the suit, hence the present appeal.5. learned counsel for the appellant has argued that the learned appellate court has grossly erred while accepting the appeal of the defendants-respondents and setting aside the well reasoned judgment and decree of the learned trial court by invoking the provisions of section 53-a of the transfer of property act, 1982 (for short “the act”.). on the other hand, learned counsel for the defendants- respondents has argued that the plaintiff himself has not appeared in the witness box and thus his suit for possession was not at all maintainable. it is further argued that an oral agreement to sell had taken place between the parties and in view of the bank statement dated 4.5.2006 (ex.d.4), it is clearly proved that entire sale consideration has been received by the plaintiff-appellant and thus, the learned first appellate court has rightly held that the defendant-respondents have become the owners of the house in rsa no.4703 of 2010 (o&m) #4# dispute in view of section 53-a of the act.6. after hearing learned counsel for both the sides and perusing the paper book, this court finds that the following solitary substantial question of law is involved in the present case: “whether in view of the facts and circumstances of the present case, the defendants-respondents have become the owners in possession of the house in dispute in view of the provisions of section 53-a of the act or not?.”. a perusal of paper book reveals that undisputedly the plaintiff was the owner of the house in dispute and the defendants were inducted as licensee and the licence has been terminated issuing legal notice dated 21.9.2006 (ex.p.6). there is no dispute that the house in dispute is situated in abadi deh of the village. contrary to it, the defendants are claiming that they have purchased the house in dispute from the plaintiff for a total sale consideration of rs.4,96,000/- and out of which rs.60,000/- was paid as earnest money on 8.5.2005 in the presence of gurnam singh and sukhdev singh (mediator). it is also alleged that mediators asked the defendants to deposit balance amount of rs.4,20,000/- in the bank account of sukhdev singh and the same was deposited in his account maintained with the punjab national bank on 4.5.2006 and the same was withdrawn by said sukhdev singh and was further handed over to the plaintiffs along with a sum of rs.15000/- on 4.5.2006 itself and thus, the defendants are continuing as owner in possession of the suit property and not as licensee as claimed by the plaintiff. it is pertinent to record here that there is neither any counter rsa no.4703 of 2010 (o&m) #5# claim filed by the defendants-respondents not any issue was framed by the learned trial court to the effect that the defendants have purchased the house in question by way of an agreement to sell as alleged by them. no doubt, it has been brought on record by the defendants- respondents that an amount of rs.4,25,000/- was deposited by the plaintiff in his account no.55058427379 maintained with the state bank of patiala, shahbad markanda on 4.5.2006 (ex.d.3 & d.4) but it is nowhere proved that this amount was received by the plaintiff from the defendants- respondents as a balance sale consideration regarding the house in dispute. sukhdev singh while appearing as dw2 in his testimony has also not deposed that he withdrew the aforesaid amount on 4.5.2006 and gave it to theh plaintiffs towards the balance sale consideration. therefore, the observation of the learned first appellate court in para 9 of its judgment to the effect that “the appellants-defendants were put in the physical possession of the house in question and since then, they are owners in possession of the same and that the total sale consideration was paid by the appellants-defendants to the respondent-plaintiff”., is based on no evidence and in my opinion, has been recorded merely on surmises and conjectures and deserves to be set aside.7. so far as the reasoning given by first appellate court that the defendants-respondents have become owners in possession of the house in dispute in view of section 53-a of the act is not sustainable as there is neither any pleading not any evidence to prove that any “contract in writing”. was entered into between the parties in the present case, which is sine qua not for taking recourse to the provisions of section 53-a of the act and reference in this regard can be made to the judgment of hon'ble rsa no.4703 of 2010 (o&m) #6# supreme court reported as nanjegowda and anr. vs. gangamma and ors, (2011) 13 scc 232.para 9 of which reads as under:“9. from a plaint reading of the aforesaid provision, it is evident that a party can take shelter behind this provision only when the following conditions are fulfilled. they are: (i) the contract should have been in writing signed by or on behalf of the transferor; (ii) the transferee should have got possession of the immovable property covered by the contract; (iii) the transferee should have done some act in furtherance of the contract; and (iv) the transferee has either performed his part of the contract or is willing to perform his part of the contract.”. thus, in view of the above, the substantial question of law framed in the present case is answered against the defendant-respondents and in favour of the plaintiff-appellant.8. the argument that the plaintiff has not appeared as a witness in the witness box, is not fatal as the present suit was filed only for possession on account of termination of licence and the son of the plaintiff being the special power of attorney (ex.p.7) had appeared as pw3 and supported the contents of the plaint and was cross examined by the defendants- respondents but nothing adverse could be elicited against him. he has deposed that his father remained ill and he had suffered a fracture in his shoulder and thus was incapable to move and the legal notice (ex.p.6) along with its registered envelope and postal receipts were also duly proved on record as ex.p2 to p.5 by the plaintiff-appellant, therefore, there is no merit in this contention also. thus, the defendants-respondents, in my view, cannot derive any benefit due to non-appearance of the plaintiff-appellant.9. in view of the above, present appeal is accepted. the impugned judgment and decree dated 31.7.2010 passed by the learned addl. rsa no.4703 of 2010 (o&m) #7# district judge, kurukshetra is set aside and the judgment and decree dated 10.12.2009 passed by the learned civil judge (jr. division), kurukshetra is restored while decreeing the suit of the plaintiff-appellant. november 20, 2012 ( jaswant singh ) manot judge
Judgment:

RSA No.4703 of 2010 (O&M) #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4703 of 2010 (O&M) Date of decision:

20. 11.2012 Mehar Bhan Singh ….Appellant Vs. Lachhman Singh and Anr. ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. Vijay Kumar Jindal, Advocate for the appellant. Mr. Rajesh Bansal, Advocate for the respondents. Jaswant Singh, J 1.Plaintiff-appellant is in second appeal against the judgment and decree of reversal dated 31.7.2010 passed by the learned Addl. District Judge, Kurukshetra whereby the appeal of the defendants- respondents filed against the judgment and decree dated 10.12.2009 passed by the learned Civil Judge (Jr. Division), Kurukshetra partly decreeing the suit of the plaintiff-appellant, has been accepted while setting aside the judgment and decree of the learned trial Court.

2. Brief facts of the case are that the plaintiff-appellant filed a suit for possession of a house in dispute situated in village Dakala, Tehsil Thanesar, District Kurukshetra as described in the head note of the plaint along with mesne profits at the rate of Rs.2500/- per month with effect from 15.4.2006 till delivery of actual possession of the said house against the defendants-respondents being licensee. It was RSA No.4703 of 2010 (O&M) #2# submitted that the defendants, who were known to the plaintiff, on shifting from village Bibipur to their village Dhakala, Tehsil Thanesar, were given the possession of the house in dispute on 15.4.2006 for a period of four months. After expiry of the said period since they refused to vacate the premises, a legal notice (Ex.P.6) in the month of September 2006 was served to vacate the premises. Defendants contested the suit by filing a written statement and submitted that they had purchased the house in question from the plaintiffs through mediators Sukhdev Singh and Gurnam Singh, residents of village Dhakala, who are known to the plaintiff, by way of an oral agreement to sell for a total consideration of Rs.4,96,000/-. It was further submitted that the earnest money of Rs.60000/- was paid by them on 8.5.2005 in the presence of the aforesaid mediators and possession was handed over to the defendants whereas balance consideration was deposited in the account of the Mediator-Sukhdev Singh on 4.5.2006, who withdrew the same and gave the amount to the plaintiff.

3. On the basis of the pleadings, issues were framed and on evaluation of the evidence adduced on record, learned Civil Judge (Jr. Division), Kurukshetra after considering the whole matter came to the conclusion that no such agreement to sell or transaction took place as claimed by the defendants and their whole case is false and bogus and reference in this regard can be made to para 30 of its judgment. Learned trial Court while further concluding its reasoning in para 36 came to the conclusion that the defendants have failed to prove their title over the house in question by taking recourse to Section 53-A of the Act being licensee and RSA No.4703 of 2010 (O&M) #3# after termination of their licence vide legal notice (Ex.P.6), the plaintiff is entitled to decree of possession and were directed to do the same. Accordingly, the learned trial Court vide judgment and decree dated 10.12.2009 partly decreed the suit qua possession but dismissed regarding mesne profits.

4. However, learned first appellate Court while allowing the appeal by taking recourse to Section 53-A of the Act came to the conclusion that the defendants-appellants are in possession of the house in dispute as owner since 15.4.2006 and they are not licensee as claimed by the plaintiff and the version of the plaintiff has been observed to be false on the basis of the rates of property having been escalated. Thus, the appeal was accepted by the learned Addl. District Judge, Kurukshetra vide judgment and decree dated 31.7.2010 thereby dismissing the suit, hence the present appeal.

5. Learned counsel for the appellant has argued that the learned appellate Court has grossly erred while accepting the appeal of the defendants-respondents and setting aside the well reasoned judgment and decree of the learned trial Court by invoking the provisions of Section 53-A of the Transfer of Property Act, 1982 (for short “the Act”.). On the other hand, learned counsel for the defendants- respondents has argued that the plaintiff himself has not appeared in the witness box and thus his suit for possession was not at all maintainable. It is further argued that an oral agreement to sell had taken place between the parties and in view of the bank statement dated 4.5.2006 (Ex.D.4), it is clearly proved that entire sale consideration has been received by the plaintiff-appellant and thus, the learned first Appellate Court has rightly held that the defendant-respondents have become the owners of the house in RSA No.4703 of 2010 (O&M) #4# dispute in view of Section 53-A of the Act.

6. After hearing learned counsel for both the sides and perusing the paper book, this Court finds that the following solitary substantial question of law is involved in the present case: “Whether in view of the facts and circumstances of the present case, the defendants-respondents have become the owners in possession of the house in dispute in view of the provisions of Section 53-A of the Act or not?.”. A perusal of paper book reveals that undisputedly the plaintiff was the owner of the house in dispute and the defendants were inducted as licensee and the licence has been terminated issuing legal notice dated 21.9.2006 (Ex.P.6). There is no dispute that the house in dispute is situated in abadi deh of the village. Contrary to it, the defendants are claiming that they have purchased the house in dispute from the plaintiff for a total sale consideration of Rs.4,96,000/- and out of which Rs.60,000/- was paid as earnest money on 8.5.2005 in the presence of Gurnam Singh and Sukhdev Singh (Mediator). It is also alleged that Mediators asked the defendants to deposit balance amount of Rs.4,20,000/- in the bank account of Sukhdev Singh and the same was deposited in his account maintained with the Punjab National Bank on 4.5.2006 and the same was withdrawn by said Sukhdev Singh and was further handed over to the plaintiffs along with a sum of Rs.15000/- on 4.5.2006 itself and thus, the defendants are continuing as owner in possession of the suit property and not as licensee as claimed by the plaintiff. It is pertinent to record here that there is neither any counter RSA No.4703 of 2010 (O&M) #5# claim filed by the defendants-respondents not any issue was framed by the learned trial Court to the effect that the defendants have purchased the house in question by way of an agreement to sell as alleged by them. No doubt, it has been brought on record by the defendants- respondents that an amount of Rs.4,25,000/- was deposited by the plaintiff in his account No.55058427379 maintained with the State Bank of Patiala, Shahbad Markanda on 4.5.2006 (Ex.D.3 & D.4) but it is nowhere proved that this amount was received by the plaintiff from the defendants- respondents as a balance sale consideration regarding the house in dispute. Sukhdev Singh while appearing as DW2 in his testimony has also not deposed that he withdrew the aforesaid amount on 4.5.2006 and gave it to theh plaintiffs towards the balance sale consideration. Therefore, the observation of the learned First Appellate Court in para 9 of its judgment to the effect that “the appellants-defendants were put in the physical possession of the house in question and since then, they are owners in possession of the same and that the total sale consideration was paid by the appellants-defendants to the respondent-plaintiff”., is based on no evidence and in my opinion, has been recorded merely on surmises and conjectures and deserves to be set aside.

7. So far as the reasoning given by first appellate Court that the defendants-respondents have become owners in possession of the house in dispute in view of Section 53-A of the Act is not sustainable as there is neither any pleading not any evidence to prove that any “contract in writing”. was entered into between the parties in the present case, which is sine qua not for taking recourse to the provisions of Section 53-A of the Act and reference in this regard can be made to the judgment of Hon'ble RSA No.4703 of 2010 (O&M) #6# Supreme Court reported as Nanjegowda and Anr. Vs. Gangamma and Ors, (2011) 13 SCC 232.para 9 of which reads as under:

“9. From a plaint reading of the aforesaid provision, it is evident that a party can take shelter behind this provision only when the following conditions are fulfilled. They are: (i) The contract should have been in writing signed by or on behalf of the transferor; (ii) The transferee should have got possession of the immovable property covered by the contract; (iii) The transferee should have done some act in furtherance of the contract; and (iv) The transferee has either performed his part of the contract or is willing to perform his part of the contract.”

. Thus, in view of the above, the substantial question of law framed in the present case is answered against the defendant-respondents and in favour of the plaintiff-appellant.

8. The argument that the plaintiff has not appeared as a witness in the witness box, is not fatal as the present suit was filed only for possession on account of termination of licence and the son of the plaintiff being the special power of attorney (Ex.P.7) had appeared as PW3 and supported the contents of the plaint and was cross examined by the defendants- respondents but nothing adverse could be elicited against him. He has deposed that his father remained ill and he had suffered a fracture in his shoulder and thus was incapable to move and the legal notice (Ex.P.6) along with its registered envelope and postal receipts were also duly proved on record as Ex.P2 to P.5 by the plaintiff-appellant, therefore, there is no merit in this contention also. Thus, the defendants-respondents, in my view, cannot derive any benefit due to non-appearance of the plaintiff-appellant.

9. In view of the above, present appeal is accepted. The impugned judgment and decree dated 31.7.2010 passed by the learned Addl. RSA No.4703 of 2010 (O&M) #7# District Judge, Kurukshetra is set aside and the judgment and decree dated 10.12.2009 passed by the learned Civil Judge (Jr. Division), Kurukshetra is restored while decreeing the suit of the plaintiff-appellant. November 20, 2012 ( JASWANT SINGH ) manot JUDGE