Back
2011(2) Law Herald (P&H) 1770
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rakesh Kumar Jain
RSA No.2124 of 1985
Ram Singh & Ors.
v.
Mansa Singh & Ors.
{Decided on 17/02/2011}
In the present case, in the agreement of sale there is no date fixed 1for the purpose of performance of the contract, but the plaintiffs had themselves claimed in para No.6 of the plaint that despite repeated requests, the defendants had not come forward for the purpose of registration of sale deed and had finally refused a week before the filing of the suit, meaning thereby, a right to sue had accrued for the specific performance of the contract but the plaintiffs only filed a suit seeking ownership on the basis of adverse possession which right was even abandoned during the trial and a finding of fact has also been recorded against the plaintiffs that right of ownership has not matured by way of adverse possession and that point has not even been argued before this Court because only injunction has been sought to protect the possession on the strength of Section 53A of the Act of 1882. Moreover, Order 2 Rule 2 of CPC provides that where the plaintiff has a right which he intentionally omits, he shall not allowed to sue in respect of the right so omitted or relinquished. In this case, the plaintiffs had a right to ask for registration of the sale deed to acquire full ownership rights over the property in dispute, but they had omitted to sue and now in future they would not be able to sue for it in terms of Order 2 Rule 2 of CPC. Thus, in normal circumstance, Section 53-A of the Act of 1882, which is an equitable doctrine, can protect the disturbance of the possession of a transferee at the hands of the transferor, but in a case where the transferee omitted to sue for specific performance and had not sued for it specifically and his suit is now for all intents and purposes barred by law, he cannot seek permanent injunction in view of Section 41(h) of the Act. (Para 15)
Rakesh Kumar Jain, J.:- The defendants are in second appeal against the judgment and decree of the First Appellate Court by which judgment and decree of the learned Trial Court has been reversed.
2. In brief, the plaintiffs filed a suit for declaration alleging therein that they are the owners in possession of the land in dispute by virtue of an agreement to sell dated 05.06.1971 entered into between the parties for a sum of ‘5,700/- which was paid then and there with a stipulation that whenever the plaintiffs would require to get the sale deed registered they would have the option to do the same. It was alleged that no sale deed has been registered so far, but as the plaintiffs are in peaceful continuous possession of the land in dispute for more than 12 years with the knowledge of the defendants, they have become owners by way of adverse possession. It was also alleged that the plaintiffs had requested the defendants many a times to get the sale deed registered in their favour, but they have been postponing the matter on one pretext or the other and finally refused to admit their claim a week back. It is also averred that the plaintiffs have come to know that the defendants have executed another agreement to sell in respect of the land in dispute in favour of other persons and started interfering in their peaceful possession. With these assertions, the following prayer was made in the suit: -
“It is therefore prayed that a decree for declaration to the effect that the plaintiffs are the owners of the entire suit land as detailed above and as per copy of the jamabandi attached herewith for the facts given above with permanent injunction as consequential relief restraining the defendants from getting the sale deed registered of the land of which the plaintiffs are the owners in possession and to get registered the sale deed to any other person by dispossessing the plaintiffs from the suit land illegally and forcibly may kindly be passed in favour of the plaintiffs and against the defendants with costs. Any other relief which the Court deems fit may also be awarded to the plaintiffs.”
3. It may be pertinent to mention that initially the suit was filed on 21.04.1981 by Surain Singh but lateron, after the death of Surain Singh, an application was moved on 14.02.1983 for impleading his legal representatives which were brought on record and the suit was amended. Hence, the amended suit was filed on 05.03.1983 from which the prayer made in the suit has been extracted hereinabove. While contesting the suit, the defendants had denied the averments made in the plaint much-less the agreement and the amount of consideration as alleged by the plaintiffs. The plaintiffs filed replication and on the pleadings of the parties, the learned Trial Court framed the following issues: -
“1. Whether the plaintiff is in possession of the suit land?OPP.
2. Whether there is any valid agreement dated 05.06.1971 as alleged?OPP.
3. If issue No.2 is proved whether the agreement is void etc. as alleged by the defendants?OPD.
4. Whether the plaintiff has become the owner by adverse possession?OPP.
5. Whether the suit is not maintainable in the present form?OPD (onus objected to).
6. Whether the suit is barred by principle of res judicata?OPD.
7. Whether the plaintiff is estopped by his own act and conduct from filing the suit?OPD.
8. Whether the plaintiff has no locus standi to file the suit?OPD.
9. Whether the plaintiff has now come to the Court with clean hands, if so its effect?OPD.
10. Whether the suit is time barred?OPD.
11. Whether the suit is false and frivolous? If so its effect?OPD.
12. Relief.”
4. In support of their case, both the parties led the following evidence: -
“5. In evidence the original plaintiff came in the witness box as PW1, PW2 Nand Singh, PW3 Partap Singh and PW4 Anant Kumar were also examined. On behalf of the defendants, the following witnesses were examined: -
DW1 Dr. Gian Bhushan
DW2 Shifta Hassan
DW3 Ram Singh (defenda
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
