DHEERAJ RAM Vs. RAM SINGH

JUDGEMENT

(1.) The plaintiffs' suit, for, rendition of a decree, for, permanent prohibitory injunction vis-a-vis the suit land, and, vis--vis the defendant, was, concurrently decreed, by both the learned Courts below, whereas, the defendants' counter claim, for rendition, of a decree of mandatory injunction, for, dismantling the dhara raised thereon, was also concurrently dismissed, by both the Courts below.

(2.) Briefly stated the facts of the case are that vide agreement to sell of 21.11998 the plaintiff has agreed to purchase the land measuring 4 biswas out of the total land measuring 1956.94 sq. mtr. comprised in Khasra No. 160 Mauza Kasumpti Junga, Shimla. The plaintiff has paid Rs. 40, 000/- to the predecessor-ininterest of the defendant. The predecessor-in-interest of the defendant at the time of entering into agreement has given the possession of the land measuring 4 biswas to the plaintiff on the spot as would be depicted by the agreement and in lieu of this, the predecessorin-interest of defendant fenced his plot land measuring 4 biswas on the spot. The defendants has agreed to get the sale deed registered in the name of the plaintiff as and when he will become the owner of the land as comprised in Khasra No. 160. The predecessor-ininterest of the defendant died on 21.7.2002 and thereafter right regarding the mutation regarding nonoccupancy tenant is believed to be transferred in favour of the defendant and who in turn tried to grab the land which the plaintiff had agreed to purchase by removing the barbed wire through which 4 biswas of land agreed to be purchased has been fenced. Defendant tried to block the passage which goes to the plot of the plaintiff.

(3.) The suit is contested by the defendant by filing written statement taking preliminary objection that the suit is not maintainable and the plaintiff is estopped from filing the present suit on account of his own acts, deeds, that the suit is bad for non-joinder of necessary parties, that no cause of action ever accrued in favour of the plaintiff and that there is no privity of contract between the plaintiff and the defendant to file the present suit. The case of the defendant is that the agreement of 21.12.1998 executed in between the predecessor in interest of the defendant late Sukh Ram and the plaintiff is conditional agreement and the same is void ab-initio and is not binding against the rights of the defendant. It is contended that the plaintiff never remained in possession of the property agreed to be sold by the predecessor-in-interest vide agreement dated 21.12.1998. The defendant is in exclusive and physical possession of the suit land. It is admitted that after the death of late Sh. Sukh Ram, land in question was recorded in the name of defendant vide mutation No. 206. That the plaintiff never remained in possession of the land but after trespassing over the property of the defendant succeeded in raising a tin sheet dhara approximately 10'x12' feet on land comprised in Khasra No. 160 and for that the defendant is hereby filing counter claim for the demolition of the same.