RATTAN LAL MAHAJAN Vs. TULSI RAM

JUDGEMENT

(1.) This regular second appeal has been preferred by the appellant -plaintiff Sarwan (since deceased and hereafter referred to as the deceased) represented by the legal representatives, the present appellants, (hereafter referred to as appellants) against the judgment and decree dated 15.2.1993 passed by the learned Addl. District Judge, Bilaspur in Civil Appeal No. 252 -B of 1986 whereby the judgment and decree dated 19.1.1985 passed by the learned Sub Judge 1st Class, Ghumarwin, has been upheld and affirmed.

(2.) The brief facts leading to the presentation of this appeal are that the deceased instituted a suit against the respondents -defendants No.1 to 4 (hereafter referred to as the defendants) in which proforma respondents -defendants No.5 to 7 (hereafter referred to as the proforma defendants) were also added as parties and the relief claimed was for possession of land comprising Khata Khatauni No.3/8 Khasra No. 359 measuring 2 Biswas situate in village Dakri, Pargana Tiun, Tehsil Ghumarwin, District Bilaspur (hereafter (hereafter referred to as the suit land) alongwith house -cum -shop, detailed in site plan Ext. PW -3/A and Ext.PW -3/B. The relief of permanent injunction restraining the defendants from raising any new construction, mandatory injunction and mesne profits were also claimed. The case, as made out in the plaint, is that the deceased was non -occupancy tenant of the suit land and subsequently acquired proprietary rights in respect of one biswa of land and remained non -occupancy tenant in respect of remaining one biswa of the land. He constructed a house -cum -shop on the suit land and left apart some portion of the land as a court yard. He remained in possession of the said house -cum -shop and the court yard upto 27.4.1979 when at about 11 P.M. the defendants by breaking the lock forcibly entered the house -cum -shop wherein some articles like eot, rafters, wooden pieces, kacha bricks and almirah valued at Rs.210/ - were also kept and took the forcible possession of the house -cum -shop and the court yard. Despite request by the deceased, the defendants failed to vacate their forcible possession. Hence, the suit.

(3.) The claim as made out in the suit, was resisted by the defendants. In the written statement, they raised preliminary objections that the suit was not properly valued for the purposes of Court fee and jurisdiction, that the plan of the shop attached with the plaint was incorrect and the suit was not maintainable in the form it has been laid. On merits, it was claimed that the deceased executed an agreement on 25.7.1978 agreeing to sell 4 Biswas of land comprising the suit land and Khasra No. 471/360 for a consideration in the sum of Rs.16,500/ -to defendant No.1 and received a sum of Rs.8000/ - as advance payment agreeing to pay Rs.4000/ - on Diwali of 1978 and Rs. 4500/ - on Lohri of 1979 and also agreed to execute a sale deed in favour of defendant No.1. On the date of execution of the agreement and on receipt of Rs.8000/ - the deceased handed over the possession of the land agreed to be sold, including the suit land, to defendant No.1. Thereafter, defendant No.1 after incurring expenses in the sum of about Rs. 11,000/ - constructed the house - cum - shop and also paid Rs.4000/ - to the deceased and asked him to executed the sale deed. The deceased, however, executed a sale deed. The deceased, however, executed a sale deed in respect of 2 Biswas of land comparing Khasra No.471/360 on 2.12.1978 but put off the execution of\the sale deed in respect of the suit land on one pretext or the other and instead instituted this false suit,. Thus, the claim, as made out in the plaint, was denied, the proforma defendants No.5 and 6 in their separate written statements, supported the claim of the defendants 1 to 4, Similarly proforma defendant No.7, on whose behalf separate written statement was filed, also supported the claim of the defendants.