Punjab-Haryana High Court
(O&M) Dilbagh Singh vs Baru Ram on 5 December, 2022
RSA-1409-1990 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-1409-1990 (O&M)
Date of decision: 05.12.2022
Dilbagh Singh
...Appellant
Versus
Baru Ram
...Respondent
CORAM: HON'BLE MR.JUSTICE H.S. MADAAN
Present: Mr. Balbir Singh, Advocate for the appellant.
Mr. K.S. Dadwal, Advocate for the respondent.
*****
H.S. MADAAN, J. (Oral)
Briefly stated facts of the case are that plaintiff Dilbagh
Singh belonging to Ad-dharmi community, resident of Village Bachhoi
(Majra Bhairu), Tehsil Garhshankar, District Hoshiarpur had brought a
suit against defendant Baru Ram belonging to his own community and
resident of his village seeking a declaration that he is owner in possession
of ½ share of the suit land measuring 105K-10M, situated at Village Chak
Harnoli, Tehsil and District Hoshiarpur and in the alternative, seeking a
direction to the defendant to execute and get registered a sale deed in his
favour on receipt of Rs.1000/- and for possession of the suit land. As per
version of the plaintiff, the suit land was unallotted evacuee property and
both the plaintiff and the defendant wanted to get that land in open
auction, therefore, they had entered into an agreement that the bid would
be given by defendant Baru Ram whereas consideration amount would be
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paid by them equally and they would share the land allotted in public
auction. In that way, when bid given in the name of defendant Baru Ram
was accepted, the bid amount/price was shared by the plaintiff and the
defendant and they entered in possession of the suit land in equal share,
however, the mutation was sanctioned in the name of the defendant only.
According to the plaintiff, he has been in possession of the suit land on
the eastern side where the defendant is in possession of remaining ½
share on western side. Furthermore, according to the plaintiff, his right in
the suit land had been conceded by the defendant, vide writing before
Gram Panchayat on 05.03.1984, vide which the defendant had agreed to
execute the sale deed in his favour for Rs.1000/- which amount was to be
paid by the plaintiff to the defendant in order to compensate him for
payment of land revenue etc. It was further agreed that defendant would
pay Rs.500/- to the panchayat for non performance of his contract.
According to the plaintiff, he had been ready and willing to perform his
part of contract and had obtained copy of jamabandi for getting the sale
deed executed but defendant did not come forward to perform his part of
the agreement, as such, plaintiff was compelled to knock at the door of
the Court by way of filing civil suit against the defendant.
2. On notice, the defendant appeared and filed written
statement, contesting the suit raising various legal objections to wit that
the suit was not maintainable, since the plaintiff should have filed the suit
for possession by way of specific performance; the suit was not valued
properly for the purpose of Court fee and jurisdiction. On merits, the
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defendant denied that the suit land had been purchased by him and the
plaintiff jointly or that the plaintiff had paid ½ of the auction money. He
further denied that the plaintiff was in possession of any part of the suit
land. According to the defendant, he had reclaimed the land himself by
incurring expenditure since the plaintiff was not in possession of any part
of the suit land, therefore, the suit in the present form at his instance was
not maintainable. In the end, the defendant prayed for dismissal of the
suit.
3. Plaintiffs filed replication controverting the allegations in the
written statement, whereas reiterating the averments in the plaint.
4. From the pleadings of the parties, following issues were
framed by the trial Court:-
(1) Whether the suit for specific performance of the contract
and possession of the land in suit is within time. OPP.
(2) Whether the value of the suit for the purpose of court fees
and jurisdiction is proper. OPP
(3) Whether there was any agreement between the parties to
the effect that in case, the bid of the defendant will be
accepted the plaintiff and the defendant joint owners of
the property to the extent of one half share each. OPP
(4) Whether the plaintiff has been in possession of the suit
land to the extent of one half share. If so, to what effect.
OPP.
(5) Whether the plaintiff has reclaimed any portion of the
suit land. If so, to what effect. OPP.
(6) Relief.
5. During the course of evidence of the plaintiff, he examined
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Bakshish Singh, Gian Chand, Secretary of Gram Panchayat, Jagir Singh,
Pritam Chand, Mohinder Pal to prove his case. He got his own statement
recorded to corroborate his version as given in his pleadings.
6. In rebuttal, the defendant examined Piara Ram and Tarsem
Lal to prove his case.
7. After hearing arguments, the trial Court decided issues No.1
to 4 against the plaintiff and in favour of the defendant. As a result of
findings on issues, suit of the plaintiff was dismissed, vide judgment dt.
19.02.1987.
8. Feeling aggrieved, the plaintiff had preferred an appeal
before District Judge, Hoshiarpur, which was assigned to Addl. District
Judge, Hoshiarpur, who vide judgment and decree dated 09.03.1990
affirmed the judgment and decree passed by the trial Court and dismissed
the appeal filed by the plaintiff.
9. Still feeling dissatisfied, the plaintiff has knocked at the door
of this Court by way of filing the present Regular Second Appeal, notice
of which was given to the defendant/respondent who has put in
appearance through counsel.
10. I have heard learned counsel for the appellant/plaintiffs
besides going through the record.
11. Here both the Courts below on analyzing the pleadings, the
evidence adduced by the parties, in view of the factual and legal position
found the case of plaintiff to be without any merit. It was observed that
the plaintiff had not been able to clear the hurdle of limitation because the
cause of action had first arisen to him on 22.01.1972 when the land was
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allegedly purchased in joint auction whereas the suit was filed on
04.02.1985 i.e. after a period of about 13 years when the limitation of
filing a suit for declaration is three years and similar is the limitation for
filing a suit for specific performance. In terms of Section 3 of the
Limitation Act which provides that every suit instituted after the
prescribed period shall be dismissed, although, limitation has not been set
up as a defence. On merits also, the plaintiff was not found to have any
case because he is basing his claim on writing Ex.P1, the language of
which shows that it is not an agreement which can be specifically got
enforced rather it is mentioned therein that defendant would only be
liable to pay penalty of Rs.500/- to the gram panchayat. The suit of the
plaintiff can certainly be not decreed on the basis of such writing. The
plaintiff could not lead any cogent or convincing evidence that bid in the
auction had been given by the defendant to purchase the suit land on his
behalf and that of plaintiff also or that plaintiff had contributed equally
with defendant towards the payment of auction money. There is no
mention of any such oral agreement in writing Ex.P1. The claim of the
plaintiff that he is in possession of ½ share of the suit land was not
corroborated by producing any jamabandi or khase girdawri, rather claim
of defendant only appears in jamabandi Ex.PW6/A showing him to be in
exclusive possession. No receipt etc., has been proved in evidence to
show that the plaintiff had made any payment to the defendant qua the
suit land at any moment of time. I do not see any reason to differ with
such concurrent findings recorded by the Courts below. I do not find any
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illegality or infirmity in those judgments. No substantial question of law
or fact is involved in this case. The appeal is found to be without merit
and is dismissed accordingly.
05.12.2022 (H.S. MADAAN)
sumit.k JUDGE
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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