JHAMAN DAS Vs. RAMESH CHAND

JUDGEMENT

(1.) THE present appeal was filed by Shri Jhamandas (original -appellant -plaintiffs), challenging the judgment & decree dt. 30.09.1991 passed by the Additional District Judge No. 7, Jaipur City Jaipur (hereinafter referred to as "the trial Court") in the Civil Suit No. 76/89, whereby the trial Court had dismissed the suit of the plaintiff filed for seeking possession of the suit premises as also the mesne -profits from the respondents -defendants. During the pendency of the appeal, the original appellant -plaintiff had expired, and therefore his legal representatives were brought on record. The facts in nut -shell giving rise to the present appeal are that the original appellant Jhaman Das (plaintiff) had filed the suit against the respondents -defendants alleging inter alia that he had purchased the property admeasuring 310 square yards, as described in para 1 of the plaint vide the registered sale deed dt. 22.09.1967 from Major Thakur Raghuvir Singh Ji. According to the plaintiff, he wanted to raise construction on the disputed part of the said land, however the defendant Nos. 1 & 2 alongwith other persons were raising obstructions and therefore the plaintiff had to file one suit seeking perpetual injunction against them, which was decreed by the Court of Munsiff on 01.09.1978. It was further case of the plaintiff that the defendant Nos. 1 & 2 claiming themselves to be the President and Secretary of the defendant No. 3 -Society, subsequently had let out the said disputed premises to the defendant No. 4, who had started carrying on business therein, and therefore the plaintiff had served a notice upon the defendants on 21.08.1979. In response to the said notice, the defendant No. 4 had given the reply stating inter alia that he was the tenant of the defendant Nos. 1, 2 & 3 in respect of the said disputed premises. The appellant -plaintiff, therefore, filed the suit seeking possession of the said premises from the respondents -defendants and for mesne -profits. The said suit was resisted by the respondent Nos. 1, 2 & 4 by filing their joint written statement, denying the allegations made in the plaint, and further contending inter alia that the plaintiff was not the owner of the suit land, and the land in question being agricultural land, the suit was not maintainable in the civil Court. It was also contended that the respondent No. 4 was let out the disputed premises for looking after the well and lomple in the public interest and that no cause of action had arisen for the plaintiff to file the suit. It was also contended that neither the Government nor the Urban Improvement Board had acquired the said land after following the due process of law, and therefore the Urban Improvement Board had no authority to sell the said land to Thakur Raghuvir Singh Ji. The respondents -defendants had also contended that the suit of the plaintiff was barred by Order II Rule 2 as in the earlier suit, the plaintiff had not sought any declaration alongwith the permanent injunction.

(2.) THE trial Court from the pleadings of the parties had framed the following issues: -

(3.) THE learned counsel Mr. Anil Mehta for the appellant has sought to submit that the trial Court had thoroughly mis -appreciated the evidence on record more particularly the documents at Exhibit/1 and Exhibits/15 & 16. According to him, Major Thakur Raghuvir Singh Ji, had become the owner of the disputed property in view of the exchange deed Exhibit/15 and the agreement deed Exhibit/16, and the plaintiff had become the owner of the said property by virtue of the sale deed at Exhibit/1 executed by the power of attorney holder of Major Thakur Raghuvir Singh Ji in favour of the original -plaintiff Jhaman Das. Relying on the decision of the Apex Court in case of Kurella Naga Druva Vudaya Bliaskara Rao vs. Galla Jani Kamma ALMS NACHARAMMA, : (2008) 15 Supreme Court Cases 150, he has submitted that the Plaintiff being the owner of the disputed property, his suit for possession wit of seeking declaration was maintainable. Mr. Mehta placing reliance on the decision of the Apex Court in case of Vimal Chand Ghevarchand Jain & Ors. VS. Ramakant Eknath Jadoo, : (2009) 5 SCC 713, submitted that a registered sale deed of sale carries presumption that the transaction was a genuine one, and that in the instant case, the appellant -plaintiff having become the owner of the disputed property by virtue of the registered sale deed at Exhibit/1 and the said sale deed having not teen challenged by anybody, the appellant -plaintiff was deemed to have valid title. Taking the Court to the evidence led by the appellant -plaintiff before the trial Court, he submitted that the earlier suit for permanent injunction was filed by the appellant -plaintiff against the respondents -defendants which was decreed by the Court, exparte as the respondent had chosen to remain absent in the said proceedings, and therefore the findings recorded by the Court in the said suit were binding to the respondents -defendants. He also relied upon the decision of the Apex Court in case of Rajasthan State TPT Corpn. and Anr. vs. Bajranag Lal,, 2014 AIR SCW 2058, to submit that the party has to plead the case and produce sufficient evidence to substantiate the submissions made in the pleadings, and that in the instant case in absence of any pleading challenging the authority of the Urban Improvement Board or of the power of attorney holder to execute the sale deed in favour of the plaintiff, the Court should not permit the respondents to raise such issue in this appeal.