CSA/16/2009 of BILAL AHMED AND ORS. Vs BASHIR AHMED AND ORS. on 17 November 2009

1) Whether approved for reportingin Press/Journal/ Media%Yes/No11)Whether to be reportedin Digest/JournalYes/No The dispute giving rise to this Civil Second Appeal|pertains to one Marla of land comprised in Khasra No.113-min, situated at Village Thana Mandi, Rajouri, and ashop constructed thereon. |

According to the appellants, they were in permissivepossession of the Suit land, which was part of one Kanalfive marlas of land, handed over to them by therespondent-vendor’s tather Vishwanath, pursuant to anAgreement to sell executed in this behali, aiter receivingfull consideration therefor, and the respondent’s Suit forpossession of the Suit land, on the basis of the Sale Deedexecuted by Vishwanath’s Son, Sohan Lal, in his favour,was thus not maintainable, in that, being out of possession, Sohan Lal had no right to convey the Suitland, to the respondent by sale.

To decide the Suit between the parties, the trial|Court had put them to issues, which read thus:- inWhether the plaintilf is the owner of the Suitshop and the land underneath it?OPP.

oDWhether the defendant has occupied the Suitshop forcibly by installing shutter and taking thepossession thereof? OPP

3. Whether the Suit in present form is not maintainable? OPD.

4. Relief.

Aiter evaluating the evidence led by the parties in|the Suit and the documents placed on its records, thetrial Court recorded its finding on issue No.1 in favour ofthe respondent,inter alta,holding that at the time of)sohan Lal’s father’s executing the Sale Deed for one kanalfour marlas of land, on 09.02.1981, one marla had beenleft out of the sale, thereby nullifying the Agreement tosell dated June 29, 1976, on which the appellants hadraised the plea of their permissive possession.

While deciding Issue No.2, the trial Court held, on|facts, that the appellants had forcibly occupied the shopconstructed by the respondent, by installing a shutteragainst it. —

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Holding the respondent’s Suit maintainable and|deciding Issue No.3 against the appellants, the trial Courtaccordingly decreed the respondent's Suit vide its Decreeof September 30, 20038.

The Appellate Court has upheld the findings|recorded by the trial Court, though giving its own viewswhile deciding Issue No.1 against the appellants.

Aggerieved by the Decrees of the Sub-ordinateCourts, the appellants have filed this Civil Second Appeal,seeking dismissal of the respondent's Suit.

Appellants’ learned counsel submitted that having|permitted the appellants to remain in possession of thesuit land, which was part of one Kanal five marlas ofland, which had been agreed to be sold to them, byMr. Vishwanath, the owner of the land, Sohan Lal,Vishwanath’s Son, being out of possession thereof, hadno right to convey by sale, the Suit land to therespondent, which, despite Vishwanath’s receiving fullconsideration, had not been sold to them, at the time ofhis executing Sale Deed for one Kanal four marlas of landin favour of the appellants.

land, which had been agreed to be sold to them, by | have considered the submissions of learned|counsel for the parties and perused the records.

Appellants’ counsel’s submission that Vishwanath,|the owner of the land, having accepted full saleconsideration and permitted the appellants to enjoy thepossession of the land including the Suit land, since theexecution of the Agreement to Sell, his successor-in-interest, had no right to sell the land to the respondent, todeprive the appellants of their right of permissivepossession over the Suit land, looked attractive, at thefirst flush, but was, later, found without any substance,in that, the very basis of the appellants’ submission ofbeing in possession of one marla of land all through,along with rest of one kanal four marlas of land, was notborne out from the records, and the evidence produced bythe parties in the trial Court. Not only this, the document1.e. the Sale Deed dated 09.02.1981, which Vishwanathhad executed in favour of the appellants for one kanalfour marlas of land, specifically recorded the owner tohave left one marla of land from the purview of the salewhich he had intended to make in favour of theappellants. The Sale Deed acknowledges the appellants tobe in possession of only one Kanal four marlas of landand not of one kanal five marlas on which premise thelearned counsel had raised his submission.

such being the case, the very basis on which the|appellants’ counsel had built his argument of appellantsbeing in possession of one Kanal five marlas of land allthrough, having not been supported by his owndocument, i.e. Sale Deed, the submission made by theappellants may not thus require consideration, foradmitting this Civil Second Appeal to hearing, as no otherquestion of law much less substantial question of law,other than the one projected by the learned counsel haseither been raised or found arising in the case, in that,the factual findings of the two Courts, that the appellantswere not in possession of the Suit land and had forciblyoccupied the shop constructed by the respondent, cannotbe questioned in the Civil Second Appeal, in view of theprovisions of Section 100 of the Code of Civil Procedurewhich permits lying of the Civil Second Appeal only if thecase involved a substantial question of law, which doesnot arise in the appellants’ Appeal.

No ground for admission of the Civil Second Appeal,to hearing has thus been made out.

This Appeal is, accordingly, dismissed in limine.

JAMMU17.11.2009Pawan Chopra

(J. P. Singh)

Judge