Dismissed

Ganesha v. Deva Ram

Rajasthan HC22 Jan 2021CSA/33/2019

Case brief

AI extract

What is this about?

This second appeal challenges decrees in a suit for possession and injunction. The appellant claimed possession under an unproven oral agreement to sale. The High Court dismissed the appeal, holding that possession cannot be protected without a written agreement as required by Section 53-A of the Transfer of Property Act, 1882.

What did the court decide?

The appeal was dismissed with the finding that possession cannot be protected without a written agreement under Section 53-A of the Transfer of Property Act, 1882.

Ganesha Vs Deva Ram — Property and Title | Rajasthan HC (2021)

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(1 of 3)

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[CSA-33/2019]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Second Appeal No. 33/2019

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Ganesha S/o Shri Chamnaji, Aged About 56 Years, R/o Village Harji, Tehsil Ahore, District Jalore (Raj.)

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----Appellant

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Versus

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Deva Ram S/o Shri Padmaji, R/o Village Harji, Tehsil Ahore, District Jalore (Raj.)

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Daula Ram S/o Shri Chamnaji, R/o Village Harji, Tehsil Ahore, District Jalore (Raj.)

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Bharata Ram S/o Shri Chamnaji, R/o Village Harji, Tehsil Ahore, District Jalore (Raj.)

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Mohan S/o Shir Chamnaji, R/o Village Harji, Tehsil Ahore, District Jalore (Raj.)

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Chamna S/o Shri Chataraji, R/o Village Harji, Tehsil Ahore, District Jalore (Raj.)

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----Respondents

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For Appellant(s) : Mr. Rajesh Parihar. For Respondent(s) : Mr. Amit. Mehta.

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HON'BLE MR. JUSTICE ARUN BHANSALI Order

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22/01/2021

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This appeal is directed against judgment and decree dated 10.03.2014 passed by Additional Civil Judge (Senior Division) No.1, Jalore and judgment and decree dated 23.07.2018 passed by Family Court, Jalore, whereby, the suit filed by the respondents for possession, mandatory and permanent injunction has been decreed and the appeal filed by the appellant has been rejected.

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The suit was filed by the plaintiff-respondent – Deva Ram against appellant and five others inter-alia with the submissions that the suit plot was given on license to the defendant, however, despite demand, the same has not been handed over back to the plaintiff. Further relief was sought for removing obstruction on the land near the house.

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(2 of 3)

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[CSA-33/2019]

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The suit was resisted by the appellant by filing written statement and claiming that he was in possession of the suit property in terms of an agreement to sale said to be have been executed by the plaintiff in his favour.

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Based on the averments of the parties, the trial court framed three issues. On behalf of the plaintiff three witnesses were examined and four documents were exhibited. On behalf of the defendants, five witnesses were examined.

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After hearing the parties, the trial court came to the conclusion that it was not in dispute that the suit property was owned by the plaintiff and was licensed to the defendants. However, as the defendant failed to produce any material and/or document to support the agreement to sale in his favour, the issues were decided in favour of the plaintiff and the impugned decree was passed.

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Feeling aggrieved, first appeal was filed.

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The first appellate court, after hearing the parties, reiterated the findings recorded by the trial court and dismissed the appeal.

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Learned counsel for the appellant attempted to make submissions that both the courts below were not justified in decreeing the suit/dismissing the appeal.

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Submissions were made that the appellant was in possession of the suit property pursuant to the agreement to sale and was entitled to protect his possession and, therefore, the judgments impugned give rise to substantial question of law.

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Learned counsel for the respondents opposed the submissions. It was submitted that the plea pertaining to agreement to sale is not supported by any material and, therefore, in absence of any written document in this regard, the

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(3 of 3)

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[CSA-33/2019]

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appellant cannot protect his alleged possession pursuant to the purported agreement to sale and, therefore, the appeal deserves to be dismissed.

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I have considered the submissions made the learned counsel for the parties and have perused the material available on record.

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A bare perusal of the two judgments indicates that the defense was raised by the appellant based on an agreement to sale in his favour, however, admittedly no document was produced on record seeking to establish any agreement to sale having been executed between the parties.

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The plea of protecting the possession based on the alleged agreement to sale, cannot be countenanced in view of the provisions of Section 53-A of the Transfer of Property Act, 1882, which requires a written agreement between the parties. In absence of any written agreement having come on record, the plea raised has rightly been declined by the two courts below. Various submissions made by learned counsel for the appellant do not give rise to any substantial question of law.

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In view of the above discussion, there is no substance in the appeal, the same is, therefore, dismissed.

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(ARUN BHANSALI),J

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9-pradeep/-

Ganesha v. Deva Ram

Case brief

What is this about?

What did the court decide?

Ganesha v. Deva Ram

Case brief

What is this about?

What did the court decide?

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