BUTA SINGH Vs. RAJINDER KUMAR

JUDGEMENT

(1.) This is defendant's second appeal challenging the judgment and decrees of the courts below, whereby suit of the plaintiff-respondent for mandatory injunction directing the appellant to hand over the possession of the shops in dispute to the plaintiff-respondent, was decreed. As per the averments, plaintiff-respondent purchased a plot measuring 2 marlas, out of land measuring 1 kanal 3 marlas comprised in khasra No.339(1-3) and khewat No.543, khatoni No.1226 situated in the area of village Jhoke Hari Har, Tehsil and District Ferozepur, from one Sucha Singh son of Bhagat Singh, who was co-sharer in the said land for consideration of Rs.30,000/- vide registered sale deed dated 30.03.2001. Sucha Singh had entered into an agreement for sale of the said plot with the plaintiff-respondent on 18.05.1999 and had allowed him to raise construction over the said plot even before the registration of the sale deed and since then respondent was in possession of the said plot. It was further averred that Nazar Singh(father of the appellant)was shown in possession of the land measuring 1 kanal 3 marlas as gair marusi along with Darshan Singh. Though Buta Singh, appellant was in possession of some portion of said land on which he had constructed his house, to avoid any complication, defendant-appellant executed an affidavit dated 05.11.1999 confirming the aforesaid facts in favour of the plaintiffrespondent to the effect that he had no objection and also giving no objection to the construction raised by the plaintiff-respondent. It was further averred that plaintiff-respondent was in possession of 2 marlas of land comprised of two shops and vacant portion attached to the said shop.

(2.) It was further submitted that plaintiff-respondent was running his business in one shop and the other was rented out. The appellant has got no right, title or interest with the said shops of the plaintiff-respondent, whatsoever, in any manner. Appellant was bent upon to dispossess the respondent from the said shops forcibly for which he had no right . Hence the suit. Upon notice, appellant appeared before the trial Court and filed his written statement, wherein he averred that Sucha Singh son of Bhagat Singh was not in possession of the land in dispute and even otherwise also, he had no right to sell the specific portion out of joint khata of which he was not in possession and as such, the sale, if any, in favour of the plaintiff-respondent, was illegal. Sucha Singh was not competent to enter into any agreement nor he was competent to deliver a specific portion. There was no mention of agreement in the alleged sale deed dated 30.03.2001 and as such agreement dated 18.05.1999 was bogus and fabricated document. The appellant was owner in possession of the shops through tenants. Other allegations were denied. Dismissal of the suit was prayed for.

(3.) Replication was filed. From the pleadings of the parties, following issues were framed by the trial Court: