KIRAN SINGH Vs. BALBIR SINGH

JUDGEMENT

(1.) THIS defendant's second appeal arises out of judgment and decree dated 11 -4-1979 passed by District Judge, Ghaziabad, in Regular Civil Appeal No. 14 of 79 Balbir Singh and another v Kiran Singh and others, allowing the plaintiffs' appeal and decreeing the plaintiffs' suit for permanent injunction restraining the defendants from interfering in plaintiffs' possession and cultivation over, khasra plot no, 832 area 2 bigha 2 biswas situate in village Mahrauli, Pergana Dasna. Tehsil and district Ghaziabad after having setting aside the decree of the trial court whereby the trial court had dismissed the plaintiffs' suit The facts of (he case in brief are that the plaintiff-respondents filed a suit for permanent injunction restraining the defendants from interfering with the plaintiffs' possession over the suit land specifically described in the plaint. The plaintiffs' case as per plaint dated 10-4-78 has been that by virtue of agreement to sell the bhumidhari land, namely, bhumidhari plot no. 832 referred to above, was executed by Jaybir Singh In favour of plaintiffs on 19-5-76 wherein it was provided that within a period of three years from the date of agreement Jaybir Singh will execute the sale deed in favour of the plaintiffs i.e. by or before 18-S-79 the plaintiffs are in possession of the said plot, as according to the plaint allegations Jaybir Singh is alleged to have delivered possession of the land in question to the plaintiffs after having received Rs. 15,200/- as advance or earnest money towards sale consideration which was agreed upon to be Rs.25,200/- and agreed that the balance of Rs.10,000/-shall be paid by the plaintiffs to Jaybir Singh at the time of execution of the sale deed. It was farther alleged in the plaint that the plaintiffs were in possession and the wheat crop belonging to the plaintiffs was standing on the said land and that the defendants had no right or concern with the property in dispute. It was further asserted that the defendants wanted to cut the wheat crop belonging to the plaintiffs and wanted to interfere with the possession of the plaintiffs over the property in dispute; so the suit. Amongst the reliefs claimed in the relief clause of the plaint, in particular the relief for the decree for permanent injunction as mentioned above has been claimed.

(2.) THE suit was contested by the defendant-appellants. THE defendants in their written statement had asserted and had stated that the defendants had purchased the property in dispute for a sale consideration of Rs.16,000/- from Jaybir Singh vide registered sale deed dated 3-4-78. THE defendants denied the possession of the plaintiff-respondents over the suit land. It was further asserted that the crop standing over the land in dispute was not belonging to the plaintiffs . but belonged to the defendants. THE trial court framed the following issues :- 1. Whether the plaintiffs are in possession over the land in suit by virtue of agreement to sell dated 19-5-76 executed by Jaybir Singh in favour of the plaintiffs ? 2. Whether defendants were in possession over the land in salt by virtue of sale deed dated 3-4-78 executed by Jaybir Singh in their favour ?

(3.) TO what relief, if any, are the plaintiffs entitled ? 3 The trial court recorded the findings that the plaintiffs are in possession of the suit land on the basis of agreement to sell and the agreement is not void against the defendants as in the written statement the defendants have not stated that they bad no knowledge of the said agreement. The trial court further recorded the finding that as the land in dispute is agricultural land the proper remedy for the plaintiffs was to file the suit for declaration and not injunction. With these findings the trial court i.e. II Additional Munsif, Ghaziabad by his Judgment and decree dated 6-12-78 dismissed the plaintiffs/ suit with costs. 4. Feeling aggrieved from the Judgment and decree of the trial court, whereby the trial court had dismissed the plaintiffs' suit, the plaintiffs filed first appeal i. e. Regular Civil Appeal No 14 of 1979. The leaned lower appellate court set aside the trial court's decree of dismissal of the suit. The learned lower appellate court held : "What I want to stress is that Kiran Singh defendant no 1 as DW 1 did not say a single word as to why the original sale deed could not be filed by the defendants. Under the circumstances, the certified copy of the said sale deed dated 3-4 78 is not admissible in evidence. No attempt at all has been made by the defendants to prove the execution of the said sale dead by Jaybir Singh in favour of the defendants." 5. The learned lower appellate court referred to the evidence of Jaybir Singh and said that as so called vendor has denied the execution of the sate deed in favour of defendants and the defendants have not tried to produce the scribe or the marginal witnesses of the deed to show that in fact Jaybir Singh did execute the said sale deed in their favour and was simply denying that, in collusion with the plaintiffs. The learned lower appellate court further held as under :-