(O&M) Ram Chander And Others vs Ram Sarup
2022 Latest Caselaw 16623 P&H

RSA-377 of 1990 (O&M)                                             -1-

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH


                                                    RSA-377 of 1990 (O&M)
                                                  Date of decision: 13.12.2022

Ram Chander and others                                            ..Appellants

                                    Versus

Ram Sarup (deceased) through LRs                                 ..Respondent

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Amit Jain, Sr. Advocate, with Mr. Varun Parkash, Advocate for the appellants.

ANIL KSHETARPAL, J(Oral)

1. The Regular Second Appeal in the States of Punjab, Haryana

and Union Territory, Chandigarh, is governed by Section 41 of the Punjab

Courts Act, 1918 and not by Section 100 of the Code of Civil Procedure,

1908, as held by a five Judge Bench of the Supreme Court in Pankajakshi

(Dead) through LRs vs. Chandrika and others, (2016) 6 SCC 157.

2. Defendant no.1 to 3 have assailed the findings of fact arrived at

by the first appellate court while decreeing the plaintiff's suit for possession

of the property. Sh. Ram Sarup, the plaintiff, filed a suit for grant of decree

of permanent injunction and in the alternative for decree of possession. He

claims to be owner of House No.596 identified by the description of the

property on all the four directions. It is claimed that he purchased the

property in a public auction held by the Department of Custodian of Central

Government on 27.08.1960 which was confirmed and a sale certificate dated

30.01.1962 was issued in his favour. Whereas defendant no.3(Smt. Rajbala)

has executed a sale deed of the suit property in favour of defendant no.1 and

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RSA-377 of 1990 (O&M) -2-

2 on 09.08.1985 in an illegal manner. Defendant no.1 and 2 contested the

suit claiming that they are purchaser of the property from defendant no.3,

vide registered sale deed dated 09.08.1985. Defendant no.3 reiterated the

stand of defendant no.1 and 2.

3. Though, the trial court dismissed the suit, however, the first

Appellate court on re-appreciation of evidence reversed the judgment and

decree passed by the trial court while decreeing the suit for possession. The

court has found that fortunately for the plaintiff the identify of the suit

property is not in dispute as Sh. Hari Chand, Sh. Udey Bhan as also DW5-

Sh. Aishi Lal, have given the boundaries of the site in dispute which

perfectly tally with those given in layout plan, Ex.P1.

4. The First Appellate Court has observed that on the Western of

the suit property is the house of defendant no.1. The house was purchased

by defendant no.1 and 2 from PW6-Udey Bhan vide sale deed dated

31.05.1984. In the aforesaid sale deed, the Eastern boundary of the house

sold by Sh. Udey Bhan to defendant no.1 and 2, the house of the plaintiff,

namely Sh. Ram Sarup has been depicted. The sale deed is not only signed

by the vendor-Sh. Udey Bhan but also by Sh. Ram Chander. Moreover,

before filing the suit, the plaintiff filed an application for ejectment of Sh.

Hukam Chand (husband of Raj Bala) and Sh. Hukam Chand while

defending the aforesaid case claimed that there is no relationship of landlord

and the tenant, thus the ejectment petition was withdrawn in order to file the

suit.

5. This Bench has heard the learned counsels representing the

parties at length and with their able assistance perused the paper book as

well as the judgments passed by the courts below along with the record.

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 RSA-377 of 1990 (O&M)                                               -3-

6. The learned counsel representing the appellant contends that

the plaintiff filed a suit for grant of injunction but he did not seek possession

at the outset. He further contends that defendant no1 and 2 have purchased

the property through sale deed dated 09.08.1985, therefore, the suit could not

be decreed.

7. On a careful reading of the plaint, it is evident that the plaintiff

while filing the suit has, in the alternative, claimed decree of possession of

the property. The plaintiff has also sought declaration that the sale deed

dated 09.08.1985 in favour of defendant no.1 and 2 does not affect his

rights. In such circumstances, the plaintiff has already filed the suit for

possession.

8. As regards the second argument, it may be noticed that when

the defendant no.1 and 2 appeared in evidence, they admitted that before

getting the sale deed executed from defendant no.3, they did not verify the

title of their vendor. The defendants are claiming property on the basis of

sale deed. They are required to prove that their vendor has the title which

was transferred in favour of defendant no.1 and 2.

9. As regards identify of the property, DW5 has admitted the

correctness of the boundaries of the property in dispute.

10. Hence, no ground to interfere.

11. Dismissed.

12. All the pending miscellaneous applications, if any, are also

disposed of.

December 13, 2022                                (ANIL KSHETARPAL)
nt                                                     JUDGE

Whether speaking/reasoned                :       Yes/No
Whether reportable                       :       Yes/No


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