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Sushil Kumar v/s Sajjan Raj & Another

    Civil First Appeal No. 90 of 2008

    Decided On, 05 August 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE DR. JUSTICE VINEET KOTHARI

    For the Appellant: Sajjan Singh, J.K. Bhaiya, Advocates. For the Respondents: Jitendra Chopra, Yashwant Mehta, Advocates.



Judgment Text

Dr. Vineet Kothari, J.

1. This first appeal under Section 96 of C.P.C. has been filed by the Appellant Sushil Kumar S/o Sohan Lal against the judgment and decree of possession of learned Court of Additional District judge (Fast Track) No. 3, jodhpur dated 15.12.2007 in Civil Suit No. 345/2004 (32/1996), {Madan Singh Bhati through purchaser Sajjan Raj v. Sushil Kumar and Ors.}.

2. Brief facts of the case giving rise to this first appeal are as under:

3. The plaintiff-Madan Singh Bhati filed a suit for permanent injunction before the learned Additional Munsif Magistrate No. 1, jodhpur in respect of Plot No. 44-A situated at Shantipriya Nagar, Near Chirghar, jodhpur (measuring 50' x 90'), which was said to have been purchased by one Balbeer Kumar through registered sale deed dated 24.3.1983. A strip of land adjacent to the said plot was also purchased by said Balbeer Kumar by a registered sale deed dated 19.9.1986. The said Balbeer Kumar executed an agreement to sell for a sum of Rs. 25,000/- in respect of said plot No. 44-A in favour of defendant- Sushil Kumar, which was registered on 14.1.1988. While the said agreement to sell dated 14.1.1988 was subsisting, however, no conveyance deed or sale deed was executed in favour of defendant- Sushil Kumar, the said plot of land was jointly sold by the power of attorney holders of Balbeer Kumar and Sushil himself, namely. Sajjan Raj and Chandra Shekhar respectively vide a registered sale deed dated 2.12.1990 in favour of Madan Singh Bhati for a sum of Rs. 50,000/-. The power of attorney executed by the defendant- Sushil Kumar in favour of one Chandra Shekhar, was executed on 12.11.1990, which was registered on 23.11.1990, however, on the sale deed dated 2.12.1990 while both the power of attorney holders executed the sale deed, the said Sushil Kumar Agarwal and his father, namely, Sohan Lal also signed as witnesses. The

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said Madan Singh Bhati is said to have further sold the plot No. 44-A back to Sajjan Raj vide a registered sale deed dated 12.8.1994 for a sum of Rs. 70,000/-. On 12.4.1991, after the sale deed dated 2.12.1990 was executed in favour of Madan Singh Bhati, he filed a suit for injunction against Sushil Kumar being Civil Suit No. 154/1991 in which as per Commissioner's report dated 19.4.1991, the said Madan Singh Bhati was found to be in possession of the plot of land in question vide Exhibit-5 and on the next date 20.4.1991 itself, the learned trial Court granted status quo order. However, it stated that on 26.4.1991, the said Madan Singh Bhati was forcibly dispossessed by Sushil Kumar during the pendency of the said suit and despite of status-quo order. More so, during the pendency of the said suit, the said Madan Singh Bhati executed said sale deed dated 12.8.1994 in favour of Sajjan Raj, who contested the said suit as plaintiff, which has been decreed by the impugned judgment and decree dated 15.12.2007 in his favour. It has also come on record that the defendant- Sushil Kumar filed a suit for specific performance in respect of alleged agreement to sell in his favour dated 14.1.1988, being Civil Suit No. 473/1995 against Balbeer Kumar, Madan Singh Bhati and Sajjan Raj, which is pending and another suit No. 117/2003 has been filed by the defendant- Sushil Kumar against the defendant- Sajjan Raj and Balbeer Kumar (Madan Singh Bhati not being party therein) to challenge the aforesaid two sale deeds dated 2.12.1990 and 12.8.1994. The said suit was, however, dismissed by the learned trial Court on 27.2.2006 and first appeal against the judgment and decree dated 27.2.2006 being Appeal No. 15/2006 is said to be pending in the Court of learned District Judge, 1, jodhpur.

4. Learned trial Court has decreed the present suit for injunction and possession on the basis of title under sale deed dated 12.8.1994 in favour of respondent-plaintiff Sajjan Raj by the impugned judgment and decree dated 15.12.2007; and the present appeal has been filed by the defendant-appellant Sushil Kumar against the said judgment and decree. The learned trial Court has also directed payment of mesne profit by defendant- Sushil Kumar to the extent of Rs. 500/- per month from 26.4.1991 till the date of handing over the possession.

5. While admitting the present appeal, this Court stayed execution of the decree during the pendency of this appeal subject to payment of arrears of mesne profit and continuous regular monthly payment of mesne profit, which was further directed to be disbursed to the plaintiff-respondent subject to undertaking that in case appeal is allowed he would refund back the same with interest @ 9% per annum.

6. Learned counsel for the appellant, Mr. Sajjan Singh submitted that the sale deed executed on 2.12.1990 in favour of Madan Singh Bhati and on 12.8.1994 by said Madan Singh in favour of Sajjan Singh are void because they were executed while the agreement to sell executed in favour of defendant- Sushil Kumar by Sh. Balbeer Kumar on 14.1.1988 subsisted and for which a suit for specific performance being Suit No. 473/1995 is pending since no sale deed/conveyance deed was executed in favour of defendant- Sushil Kumar yet. There was no question of his power of attorney, Sh. Chandra Shekhar executing any sale deed in favour of Madan Singh Bhati on 2.12.1990. He submitted that merely signing as witness on the sale deed dated 2.12.1990 by the defendant- Sushil Kumar and his father, Sohan Lal, does not amount to admission of the execution of said sale deed and signing as the witnesses does not amount to admission of the contents of the said document. Therefore, the said Madan Singh Bhati could not pass on any further title in favour of Sajjan Raj, the plaintiff under the registered sale deed dated 12.8.1994. He also submitted that such sale deed being void and hit by Section 52 of the Transfer of Property Act deserves to be ignored and possession on the basis of such title decreed in favour of plaintiff- Sajjan Raj by the impugned judgment and decree dated 15.12.2007 deserves to be set aside. He also submitted that alleged power of attorney in favour of Chandra Shekhar executed by the defendant- Sushil Kumar was in respect of some other plot of land No. 166 in the same colony and not in respect of plot No. 44-A; and therefore, the alleged sale deed dated 2.12.1990 on the basis of such power of attorney is a nullity. He further submitted that his so-called admission made before the learned trial Court was sufficiently explained by him and, therefore, the learned trial Court has erred in decreeing the present suit on the basis of his admission about execution of power of attorney (Exhibit-6) and signing of the sale deed dated 2.12.1990 as witness along-with his father. He also submitted that since the defendant was in possession of the plot in question under the agreement to sell dated 14.1.1988, therefore, the subsequent suit filed by Madan Singh Bhati as well as Sajjan Raj was even barred by Section 10 of C.P.C. He, therefore, prayed for allowing the appeal and setting aside the impugned decree. He also relied upon following judgments to support his contentions.

7. While placing reliance on the decision rendered in the case of Kapil Corepacks Private Limited and Ors. v. Harbans Lal (Since Deceased) through LR's, reported in (2010) 8 SCC 452, he submitted that admission must be conscious and deliberate in order to binding on the person making same.

8. Learned counsel for defendant-appellant, Mr. Sajjan Singh further placed reliance upon a decision of Hon'ble Apex Court in the case of Alka Gupta v. Narender Kumar Gupta, reported in (2010) 10 SCC 141 and submitted that bar of second suit under order 2 Rule 2 C.P.C. is not applicable where second suit is based on different and distinct cause of action. In support of his this contention, he also placed reliance on the judgment rendered in the case of V. Rajeshwari (Smt.) v. T.C. Saravanabava, reported in (2004) 1 SCC 551 and submitted that particulars in material for raising plea of resjudicata have to be furnished to learned trial Court and merely on the basis of judgment, no such res judicata can be construed. He also placed reliance on the decision in the case of Gitabai v. Daya Ram Shanker and Ors., reported in AIR 1970 BOMBAY 160 (V 57 C 28) and submitted that admission of signature of a person on the document does not tantamount to execution of the document by that person.

9. Per contra, Mr. Jitendra Chopra and Mr. Yashwant Mehta, learned counsels appearing for the plaintiff-respondents vehemently submitted that the defendant- Sushil Kumar Agarwal in his statements recorded by the learned trial Court on 19.7.2007 as DW-1 had clearly admitted that he executed the said power of attorney in favour of Chandra Shekhar, which was also registered, and that on the sale deed dated 2.12.1990 (Ex.2) has admitted his signatures as witnesses and the signatures 'G' to 'H' of his father and on page 9, signatures at place 'I' to 'J' were his own signatures. In his cross-examination, he has clearly admitted that (Exhibit-6), the power of attorney was executed by himself in favour of said Chandra Shekhar. Learned counsels, therefore, submitted that the admission of the defendant-Sushil Kumar before the learned trial Court is the best evidence against him and no further proof was required for upholding the validity of the sale deed executed jointly by the power of attorney holders of both the persons, Balbeer Kumar Jain (original owner), the ownership and title of whenever the said plot of land in question is not doubted by anybody and subsequent person, namely, Sushil Kumar, who claims under an agreement to sell executed by Balbeer Kumar in his favour on 14.1.1988. Thus both of them admittedly transferred their rights whatever vested in their favour of said Madan Singh Bhati registered sale deed dated 2.12.1990 (Exhibit-2), who further transferred the said title in favour of plaintiff Sajjan Raj by registered sale deed dated 12.8.1994 (Exhibit-3). They, therefore, urged that the decree of possession and injunction against the defendant is perfectly justified and based on documentary evidence of title of plaintiff led before the learned trial Court and there is no misreading of such evidence and no perversity in the findings or wrong interpretation of the documents. Therefore, the said decree deserves to be upheld. They further submitted that the suit for cancellation of the sale deed filed by the defendant- Sushil Kumar has already been dismissed by the learned trial Court on 27.2.2006, against which, an appeal is pending. They also urged that the plaintiff- Sajjan Raj had much better and perfect title as against the defendant- Sushil Kumar over the plot of land in question vis-a-vis under a registered sale deed and alleged agreement to sell in favour of Sushil Kumar for which a suit for specific performance is pending. They also submitted that surprisingly the said defendant- Sushil Kumar in his suit for cancellation of the sale deeds dated 2.12.1990 and 12.8.1994, the said Sushil Kumar who is plaintiff in Suit No. 117/2003, has not even arrayed said Madan Singh Bhati, in whose favour, sale deed dated 2.12.1990 was executed by joint power of attorney holders as a defendant; and therefore, no such relief could be granted for cancellation of the sale deeds and same has rightly been dismissed by the learned trial Court on 27.2.2006. They also submitted that in the sale deed dated 2.12.1990, the purchaser Madan Singh had clearly stipulated that the original documents of the title were not received by him and, therefore, only photocopies of the same , there passed on at the time of subsequent sale deed dated 12.8.1994 in favour of plaintiff- Sajjan Raj. They further submitted that on if power of attorney holder (Chandra Shekhar) has not appeared in the witness box, the execution of the power of attorney was duly proved by the PW-2 Sh. U.R. Mertia, Advocate. They also submitted that upon amendment in the suit under Order 6 Rule 17 C.P.C., filed by Madan Singh Bhatl, after the sale deed dated 12.8.1994 was executed in favour of Sajjan Raj, there was no rebuttal of averments made in para No. 8-A of the amended plaint on behalf of defendant- Sushil Kumar. In the cross-examination, the DW-1 Sushil Kumar in his statement recorded on 19.7.2007 had clearly stated that the document (Sale Deed dated 2.12.1990) in question was duly read by him and thereafter he has signed as witness and thus the contents of the documents were also duly proved by his own admission.

10. Relying upon decision of Hon'ble Supreme Court in the case of Thiru John v. Subramhamanyan,reported in AIR 1977 SC 1724, learned counsel for the respondents urged that it is well settled that a party's admission as defined in Sections 17 to 20 of the,Evidence Act fulfills the requirement of Section 21 and is a substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption is rebutted, the fact admitted must be taken to be established." Similarly, in the case of Biswznath Prasad and Ors. v. Dwarka Prasad and Ors., reported in AIR 1974 SC 117, the Apex Court held that under Section 21 of the Evidence Act, admission made by a party can be used against the party making them and admissions made by a party to suit need not be put to him, when he is in the witness box.

11. I have heard learned counsel for the parties at length and perused the impugned judgment and decree, case laws cited at bar and considered the submissions made at the bar.

12. In the considered opinion of this Court, the present appeal filed by the defendant- Sushil Kumar has no force and, therefore, deserves dismissal with costs. In view of categoric and unequivocal admission of the defendant himself as DW-l, who appeared in the witness box before the learned trial Court on 19.7.2007 and was also thoroughly cross-examined, on the own admission of the defendant, Sushil Kumar, the execution of the power of attorney by him in favour of Chandra Shekhar is beyond pale of doubt. The execution of the power of attorney by the original owner Balveer Kumar Jain in favour of Sajjan Raj is not even in dispute by anybody. Thus, both the power of attorney holders executing the sale deed dated 2.12.1990 for a consideration of Rs. 50,000/- in favour of Madan Singh Bhati is unquestionable. The said execution of the sale deed dated 2.12.1990 jointly by two power of attorney holders in favour of Madan Singh is further strengthened by signatures of defendant, Sushil Kumar and his father Sohan Lal as witnesses in the said sale deed. Once, the sale deed dated 2.12.1990 goes out of scope of valid challenge thereto, the subsequent sale deed executed on 12.8.1994 by Madan Singh Bhati in favour of Sajjan Raj even though the said Sajjan Raj was power of attorney holder of seller Balveer Kumar in the sale deed dated 2.12.1990, the subsequent sale deed dated 12.8.1994 by such Madan Singh Bhati in favour of Sajjan Raj is also equally unassailable. It is well settled that registered sale deed would confer much better and perfect title over the suit property or subject property then the alleged agreement to sell on the basis of which present defendant- Sushil Kumar claims any right over the plot of land in question. Admittedly, no conveyance deed was executed in his favour in pursuance of said agreement to sell dated 14.1.1988 and that is why he is still pursuing his suit for specific performance. Ought one know that in a suit for specific performance in respect of such an agreement, decree for specific performance is a discretionary relief and that may or may not be granted by the Courts, however, without commenting upon that, this Court is of the considered opinion that the present plaintiff- Sajjan Raj has much better and perfect title over the plot of land in question rather than the defendant- Sushil Kumar. The admission made by the defendant- Sushil Kumar in his statement dated 19.7.2007 before the learned trial Court damages his own case beyond repair. His admission of execution of power of attorney in favour of Chandra Shekhar, his admission of signatures on the sale deed dated 2.12.1990 after having read that, are enough to put the said plot of land out of his reach. The case in hand appears to have a chequred history and various off shoot litigation appears to have surrounded the said plot of land, which in the course of time, must have become of high market value. One does not know on the strength of what legal recourse, the said defendant- Sushil Kumar came back in possession of the said plot of land despite injunction suit filed by the Madan Singh Bhati on 12.4.1991, which was originally numbered as 154/1991, which upon amendment due to higher valuation came to be transferred to learned Additional District judge and was decreed in favour of subsequent purchaser plaintiff- Sajjan Raj by the impugned judgment and decree dated 15.7.2007 and in which a status-quo order was granted by the learned trial Court on 20.4.1991 pursuant to a Commissioner's report (Exhibit-5) dated 19.4.1991 finding the said Madan Singh Bhati to be in possession of plot of land in question. Such a conduct on the part of the defendant-appellant-Sushil Kumar is the reprehensible and clearly amounted to breach of trial Court's order of status-quo order dated 20.4.1991.

13. This Court finds that the learned trial Court discussing all the relevant evidence, admissions of the defendant-appellant and relying on the case laws has rightly decreed the suit in favour of plaintiff by the impugned judgment and decree dated 15.12.2007. This Court having looked into entire evidence again and statements of the witnesses is convinced that the defendant-appellant has no semblance of right to remain in possession of the said plot of land in question and his present appeal is devoid of merit and same is liable to be dismissed.

14. Accordingly, the appeal is dismissed and the judgment and decree of the learned trial Court dated 15.12.2007 is hereby upheld in toto. The appellant shall pay costs of Rs. 5000/- to the plaintiff-respondent. The possession of the plot No. 44-A be handed over to plaintiff-respondent Sajjan Raj within a period of two months from today. The original documents relating to title of the plot in question which are lying with the defendant-appellant, as per his own showing the same, be also handed over to the plaintiff-respondent within a period of two months from today. If the defendant-appellant fails to satisfy this decree within two months as aforesaid, the defendant-appellant shall pay mesne profit from the month of September 2011 C Rs. 5000/- per month till the actual possession of the plot of land is handed over to the plaintiff-respondent and besides execution of the decree, the plaintiff-respondent shall also be entitled to invoke contempt jurisdiction of this Court.

Appeal dismissed.
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