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2010 Supreme(HP) 944
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: V.K. Ahuja, J.
Kamlesh Rani – Appellants
Vs.
Balwant Singh – Respondent
R.S.A. No. 225 of 2000
Decided On: 31.08.2010
Headnote:1. Civil Procedure Code - S-100 and Transfer of Property Act - S- 44 - Regular Second Appeal Transfer by one owner - Transferee is entitled for possession and declaration - Transfer of interest - Private documents - Conveyance of - Revocation of Licence - Regular second appeal - Appellant filed Regular Second Appeal u/s 100 CPC against the judgment and decree dated 15.12.1999 passed by the Ld. District Judge Sirmour at Nahan reversing the judgments and decree dated 17.1.1999 passed by the Ld. Senior Sub Judge Sirmour at Nahan - Suit for possession of property comprised in Khasra No. 790, 791 & 792 measuring 86.62 Sq. Meters, situated in Mohal Rajinder Nagar. (Para - 1 & 2)
2. Grounds for - Ld. Counsel for the appellant submitted that on purchase of the suit property by plaintiffs on 27.8.1994, the license of defendant stood revoked - Ld. District judge erred in the findings that the sale deed Ext. P-2 in favour of the plaintiff has not been proved. (Para-9)
3. (i) Held, that the sale deed tendered in evidence but appellant did not examine any witness to the sale deed to prove the same-which was a private document executed in favour of the plaintiff, and had to, be proved according to law - Appeal dismissed. (Para-22)
(ii) Held, that a document which requires formal proof cannot be tendered in evidence and no presumption of corrections is attached to it simply because other party has not objected to its tendering in evidence - Appeal dismissed. (Para-22)
(ii) Held, that Ld. Appellate Court is correct in holding that license of the defendant cannot be said to have been revoked by the plaintiff, who was also not proved to be owner of the suit property - Plaintiff was righty held not entitled to the decree for possession or the damages claimed by the plaintiffs - Appeal dismissed. (Para 22)
V.K. Ahuja, J.
1. This is a regular second appeal filed by the appellant under Section 100 of the CPC against the judgment and decree, dated 15.12.1999, passed by the learned District Judge, Sirmour at Nahan, vide which he reversed the judgment and decree, dated 17.1.1998, passed by the learned Senior Sub Judge, Sirmour at Nahan.
2. Briefly stated, the facts of the case are that the appellant, hereinafter after also referred to as the plaintiff, filed a suit for possession of the property comprised in Khasra Nos. 790, 791 and 792, measuring 86.62 square meters, situated in Mohal Rajinder Nagar, as against the respondent, hereinafter also referred to as the defendant. It was alleged by the plaintiff that the land in question was owned by Maharaja Rajinder Parkash, who was succeeded by his two widows, two daughters and mother Rajmata Mandalsa Devi. It was further alleged that on the death of Rajmata Mandalsa Devi, she was succeeded by Smt. Prem Lata Devi, daughter of Maharaja Amar Parkash and two daughters and widows of Maharaja Rajinder Parkash. It was further alleged that Smt. Prem Lata Devi, wife of late Maharaja Natwar Singh, sold the property in question to the plaintiff for a sum of Rs. 15,000/ -, vide registered sale deed, dated 27.8.1984. Smt. Prem Lata Devi, vendor, had been in possession of number of properties inherited from her mother, being a co-owner, and as such was competent to sell the property inherited by her. It was further alleged that the plaintiff was delivered the possession of the suit property through the sale deed and the plaintiff became the owner of the suit property. The suit property comprises of an old house, as shown in the site plan attached with the plaint by words ABCD and pointed by red lines.
3. It was further alleged that the defendant was inducted in possession of the suit property by predecessor-in-interest of the plaintiff and other co-sharers as licensee on account of some services rendered by the defendant. The license in favour of the said defendant stood revoked on account of the transfer of the suit property by the licensor of the plaintiff. The plaintiff approached the defendant to vacate the premises, who had been assuring to vacate the same but did not vacate the possession. The plaintiff served a notice, dated 28.3.1991, upon the defendant calling upon him to vacate the premises and pay damages at the rate of Rs. 300/ - per month for the last 3 years on account of use and occupation of the premises. It was further alleged that the defendant, on receipt of the notice, replied the same and took a false plea claiming to have entered into agreement of purchase of the suit property for a sum of Rs. 5,000/ - with Smt. Nalini Devi, daughter of late Maharaja Rajinder Parkash, on 15.8.1980. It was alleged that the said plea of the defendant was mala fide and does not confer any right on the defendant because no agreement of sale was ever executed. Even if such an agreement is proved to have been executed, the same does not affect the rights of the plaintiff, who is the bona fide purchaser for value after due inquiry. Thus, it was alleged that the plaintiff is entitled to a decree for possession by way of ejectment from the suit property as well as decree for damages of Rs. 10,800/ -.
4. The defendant denied that Smt. Prem Lata Devi was in possession of the suit property or that she was competent to sell the same. It was pleaded that Smt. Prem Lata never sold the suit property to the plaintiff. The defendant was in possession of the suit property since the time of ancestors. It was also pleaded that one of the co-owner Smt. Nalini Devi, through her Power of Attorney Shri Uday Parkash, had already sold this suit property with houses for a sum of Rs. 5,000/ - vide agreement of sale, dated 15.8.1980 and full sale consideration was received and ownership possession was also transferred then and there. The sale deed was to be executed within two months after the settlement of a civil dispu
