Om Prakash vs Mukhtyar Ali (2023:Rj-Jd:31039)
2023 Latest Caselaw 7581 Raj

[2023:RJ-JD:31039]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 18/2021

Om Prakash S/o Mathura Das, Aged About 74 Years, by caste Mahatma, resident of Bagdi Mohalla, District Bikaner (Rajasthan).

----Appellant Versus Mukhtyar Ali S/o Mohammed Gurjar, by caste Gurjar, resident of Near Jain School, Bikaner.

----Respondent

For Appellant(s) : Mr. Manoj Bhandari, Senior Advocate with Mr. Prateek Surana

HON'BLE MS. JUSTICE REKHA BORANA

Judgment

21/09/2023

1. The present second appeal has been preferred against the

judgment and decree dated 27.11.2020 passed by the Additional

District Judge No.3, Bikaner in Civil Appeal No.11/2017 (CIS

No.11/2017) whereby the judgment and decree dated 15.12.2016

passed by the Additional Civil Judge, Bikaner in Civil Suit

No.293/15 (CIS No.-311/12) has been affirmed. Vide the

judgment and decree dated 15.12.2016, learned trial Court

proceeded on to dismiss the suit of the plaintiff for possession and

permanent injunction.

2. The case of the plaintiff was that he had purchased a

property from one Mahant Heerpuri vide an agreement to sell

dated 20.01.1999. On the date of execution of the agreement to

sell, possession was handed over to him and he remained in

[2023:RJ-JD:31039] (2 of 3) [CSA-18/2021]

possession of the property till year 2011. On 18.08.2011, the land

was handed over to defendant Mukhtyar Ali at his request as a

licencee. But as the defendant did not handover the vacant

possession of the land back to the plaintiff, the present suit for

possession and permanent injunction was preferred.

3. Both the Courts below specifically concluded that the plaintiff

failed to prove his possession on the land. So far as the ownership

as claimed by the plaintiff is concerned, the Courts below found

that firstly, in terms of Section 54 of the Transfer of Property Act,

1882 ('the Act of 1882') the agreement to sell could not have

divested any title or ownership on the plaintiff nor could that have

created any charge on the property. Secondly, if a document is

required to be essentially registered in terms of Section 17 of the

Registration Act, 1908 (for short 'the Act of 1908'), and the said

document is not registered, the said document cannot be read in

evidence in terms of Section 49C of the Act of 1908. Further, the

factum of execution of the agreement to sell as well as handing

over of the possession was also not proved on record as the

plaintiff and the two other plaintiff witnesses made total

contradictory statements regarding the said facts.

4. The concurrent findings of both the Courts below that the

document Exhibit-1 could not have been read in evidence and

further that the plaintiff failed to prove his possession on the land,

in the specific opinion of this Court, does not deserve any

interference, the same being totally in consonance with the

provisions of the Act of 1908 as well as the Act of 1882 and in

consonance with the evidence available on record.

[2023:RJ-JD:31039] (3 of 3) [CSA-18/2021]

5. No substantial question of law arise in the present appeal

and the same is therefore, dismissed.

6. The stay petition and the pending application, if any, also

stand dismissed.

(REKHA BORANA),J 7-Vij/-

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