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2026 DAILYLAW 16504 (HP)

Jaswant Behl v. Subhash Kumar

2026-04-06

Romesh Verma

body2026
JUDGMENT : Romesh Verma, J. The present petition arises out of the order as passed by the learned Senior Civil Judge, Dharamshala, Distt. Kangra, HP dated 08.04.2022, whereby the application filed by the defendant/petitioner under the provisions of Order 23 Rule 3 of CPC read with Section 151 CPC for dismissing the suit has been ordered to be dismissed. 2. The facts of the case are that the plaintiff/respondents filed a suit under Section 34 and 38 of Specific Relief Act for declaration and injunction to the effect that the plaintiff having been a tenant to the extent of ½ half share of the land comprised in Khata No.1, Khatauni No.8, Khasra No. 293 min, 294, 296, 297, 298, 299, 300, 301, 302, 484/321, 489/433 min, and 303 area measuring 29 kanal, 10 marlas situated in tika Dhyal, Mauza and Tehsil Dharamshala, District Kangra, H.P. has become owner by operation of the HP Tenancy & Land Reforms Act. 3. It was stated in the plaint that the defendants are very powerful and influential persons and they are manipulating the transfer of very valuable piece of land, in connivance with the revenue officials and during the jamabandi for the year 1985-1986 got the plaintiff deleted from the possessory column with respect to the Khasra Nos. 852, 859, 862, 863, 877, 878, 880, 881, 882, 884, 886 and 888 and showed the same in joint possession of all the co-owners, without any rhyme or reason and without any order from a competent officer or authority. However, the plaintiff continued to exclusively possess the above land on the spot. It was further averred that the defendants tried to dispossess the plaintiff from the suit land. An attempt was also made by the defendant No.1 to forcibly occupy and fence the suit land, though he is unaware about the location of the spot allegedly purchased by him. 4. The said suit was contested by defendant No.1 by raising various preliminary objections such as maintainability, cause of action, limitation, jurisdiction, estoppel etc. The averments as made in the plaint were specifically refuted. On merits, it was averred that the plaintiff cannot be a tenant and co-sharer simultaneously in the same Khata. 4. The said suit was contested by defendant No.1 by raising various preliminary objections such as maintainability, cause of action, limitation, jurisdiction, estoppel etc. The averments as made in the plaint were specifically refuted. On merits, it was averred that the plaintiff cannot be a tenant and co-sharer simultaneously in the same Khata. The plaintiff has not challenged the Sale Deed in favour of defendant No.23 and the entry of the plaintiff in the earlier revenue record showing him to be tenant, is just a mere paper entry. In case the plaintiff is held to be a tenant over any part of the suit land, in that case, the plaintiff has relinquished his tenancy prior to the enforcement of H.P Tenancy & Land Reforms Act and has become a co-sharer in the suit land by way of purchase. All the averments as made in the plaint were refuted by the defendants and prayed for the dismissal of the suit. 5. The plaintiff filed the suit on 21.05.2012 and the written statement was filed by defendant No.1 on 29.08.2012. On 30.04.2022, the defendants filed an application under Order 23 Rule 3 read with Section 151 CPC for dismissing the suit in accordance with the compromise/agreement dated 10.05.2013, 07.08.2013 and 28.01.2014. It was averred in the application that the plaintiff entered into compromise with the defendant No.1 vide agreement dated 10.05.2013, 07.08.2013 and 28.01.2014 with respect to the suit land and same is within the knowledge of the plaintiff, who are the legal representatives of Sh. Jai Dev. Plaintiff No.1(a) Sh. Subhash Kumar is also signatory to the said agreement and the same is evident from the signatures as appended on the compromise/agreement. Further, it has been averred that compromise dated 28.01.2014 is counter signed by Sh. Vijay Kumar, who is the son in law of Sh. Jai Dev. It has been averred that the plaintiff accepted and received the said amount towards the agreement and the plaintiff had agreed to withdraw the present suit, as well as the partition appeal. 6. Further, it has been averred that compromise dated 28.01.2014 is counter signed by Sh. Vijay Kumar, who is the son in law of Sh. Jai Dev. It has been averred that the plaintiff accepted and received the said amount towards the agreement and the plaintiff had agreed to withdraw the present suit, as well as the partition appeal. 6. That the original plaintiff had admitted the defendant No.1 to be the lawful owner in possession of the land of Khasra No.1281/721, 833, 831, 832, 887, 908, 719, 726, 727, 728, 1299/ 880, 881, 1301/ 882, 1303/884, 1305/886, 888, 1298/880, 885, 858, 861, 720, 1282/721, 1279/854, 856, 857, 1280/854, 722, 723, 724 measuring 01-28-82 hectares of Muhal Dhial Mauja and Tehsil Dharamshala, District Kangra, H.P. It was stated that since the family dispute has been settled only by way of a lawful agreement/ compromise in writing, therefore, the suit may be dismissed and suit may be decreed in accordance with the compromise. The said application was filed on 30.04.2022. 7. The application under Order 23 Rule 3 of CPC was contested by the plaintiffs by filing reply, whereby, the contents of the application were refuted. It was stated that Sh. Jai Dev, the original plaintiff passed away on 10.05.2015 and he was substituted by his legal representatives well within the time. It was stated that no agreement came to the notice of the Court from the LRs until the present application was filed by the defendants. It was further submitted that the agreements are not the deeds of transfers, and as such agreements if held to be genuine, can be enforced by defendant No.1. The copies of the agreements dated 10.05.2013, 07.08.2013, 28.01.2014 have been placed on record along with the present petition. 8. Learned trial Court vide its impugned order dated 08.04.2022 dismissed the application filed by the defendant/ petitioner under the provisions of Order 23 Rule 3 CPC read with Section 151 of CPC. 9. Feeling aggrieved, defendant No.1/ petitioner has approached this Court. 10. It is contended by the learned Senior Counsel appearing for the petitioner that impugned order is erroneous and liable to be quashed and set-aside. He submits that the learned trial Court has not decided the application in hand strictly in accordance with provisions of Order 23 Rule 3 CPC and learned Trial Court has misdirected itself by passing the impugned order. He submits that the learned trial Court has not decided the application in hand strictly in accordance with provisions of Order 23 Rule 3 CPC and learned Trial Court has misdirected itself by passing the impugned order. He further submits that it is apparent from the perusal of the agreements that after receiving the amount the original plaintiff, the predecessor-in-interest of the present respondent had agreed to withdraw the suit from the Courts below. However, the successor of original plaintiff did not honour the said agreements. It was in this background that the application was filed and it ought to have been allowed by the learned Trial court. 11. On the other hand, Mr. C.N.Singh, learned counsel for the respondents has defended the order as passed by the learned trial court dated 08.04.2022. He submits that the conduct of defendant No.1/petitioner is not up to the mark and the application, which has been filed at the fag end is just to prolong the matter and to harass the plaintiff so that the suit is not finally decided. 12. I have heard the learned counsel for the parties. The perusal of the case file reveals that the plaintiffs filed the present suit before the Court of learned Senior Civil Judge on 21.05.2012. The defendant No.1 filed written statement to the plaint on 29.08.2012. The learned trial court on 03.07.2019 framed the following issues: “1. Whether the plaintiff has been in possession of the suit land as tenant and has now become owner of the suit land, as prayed for ? OPP 2. Whether the entry made during the Bandobast Jadid, showing lesser possession of the plaintiff on the suit land is wrong, illegal and contrary to the facts ? OPP 3. Whether the plaintiff continues to possess the suit land as before, and further entry in the jamabandi for 1985-86 showing him in joint possession of the land which he held exclusively is also wrong and illegal and without any order of a competent authority/ officer ? OPP 4. Whether the plaintiff is entitled for injunction against the defendants ? OPP 5. Whether the plaintiff has no cause of action, as alleged ? OPD 6. Whether the suit is barred by time ? OPD 7. Whether the suit barred under Section 171 of the H.P.Land Revenue Act ? OPD 8. Whether the plaintiff is estopped by his own acts, conduct etc. OPP 5. Whether the plaintiff has no cause of action, as alleged ? OPD 6. Whether the suit is barred by time ? OPD 7. Whether the suit barred under Section 171 of the H.P.Land Revenue Act ? OPD 8. Whether the plaintiff is estopped by his own acts, conduct etc. as alleged ? OPD 9. Whether the suit is not correctly valued ? OPD 10. Whether the plaintiff has not approached the Court with clean hands ? OPD 11. Whether the suit is bad for non-joinder of necessary parties ? OPD 12. Whether the plaintiff cannot be a tenant and also an owner ? OPD 13. Whether the defendant No.1 is a bonafide purchase ? OPD-1 14. Whether the plaintiff has no locus standi to file the suit ? OPD-23 15. Relief.” 13. The learned trial court directed the respective parties to adduce evidence in support of their contentions to corroborate their respective case and thereafter, the case was put up for the plaintiff evidence on taking steps for 11.09.2019. It is admitted by the learned counsel for the parties that the plaintiffs have concluded their evidence and the case is now at the stage of leading evidence by the defendants. 14. It has also been observed by the learned trial Court that suit is pending since long and no steps have been taken by the defendant No.1 for producing his witnesses. The application under Order 23 Rule 3 read with 151 has been filed on 30.04.2022. 15. Mr. C.N.Singh, learned counsel for the respondents stated that the original plaintiff died on 10.05.2015 and the legal representatives of the said plaintiff were brought on record well within time. He submits that without conceding that even if it is presumed that the alleged agreements had been executed between the parties after the filing of the written statement, even then, the defendant No.1 has failed to show due diligence and he has not been able to convince that after the filing of the written statement till 2022 when the application in hand was filed, why defendant no.1 remained mum. He submits that neither during the lifetime of the plaintiff, any steps were taken by defendant No.1 to place on record the said agreements nor after the death of the original plaintiff who died on 10.05.2015. He submits that neither during the lifetime of the plaintiff, any steps were taken by defendant No.1 to place on record the said agreements nor after the death of the original plaintiff who died on 10.05.2015. That after the death of the original plaintiff, the application in hand has been filed after the lapse of more than 7 years, that too at the stage, when the matter was fixed for the evidence of the defendants. He further submits that the plaintiff is fighting for its cause for more than 14 years, and even as of today, the evidence has not been concluded on account of the fact that application Under Order 23 Rule 3 CPC was filed in the year 2022. 16. The learned counsel for the petitioner has placed heavy reliance on the photocopies of the agreements placed on record as Annexures E-1, E-2 and E-3. He submits that by virtue of agreements, the plaintiff admitted the defendant No.1 to be the owner of the land in question and that after receiving the amount, the plaintiff has transferred the title of the suit land to the defendant No.1. He submits that even after receiving the amount as per the agreement, the plaintiff has failed to withdraw the suit as per the terms and conditions of the compromise. 17. The provision of Order 23 Rule 3 CPC reads as follows.:- “(3) Where the Court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.” 18. The learned Senior counsel has placed heavy reliance on the provisions of Order 23 Rule 3 of CPC and in view of the averments as made in the application for the dismissal of the suit, the prayer of the petitioner ought to have been allowed as per the learned counsel for the petitioner. 19. The learned Senior counsel has placed heavy reliance on the provisions of Order 23 Rule 3 of CPC and in view of the averments as made in the application for the dismissal of the suit, the prayer of the petitioner ought to have been allowed as per the learned counsel for the petitioner. 19. The transfer of immovable property is governed by the provision of Transfer of Property Act (for short T.P.Act) and Section 5 of the T.P. Act defines transfer of property as follows:- “5. “Transfer of property” defined.— In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, 2 [or to himself] and one or more other living persons; and “to transfer property” is to perform such act. 3 [In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.” 20. The transfer of Property Act envisages five different modes for transferring a property with one of the mode I.e. by way of sale and the same is dealt under Section 34 of the Transfer of Property Act which defines sale and contract for sale as follows: “Sale is transfer of ownership in ex-change for a price paid or promise or part paid and part promised. 54. “Sale” defined.—“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.—Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract for sale.—A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” 21. In the present case heavy reliance is being placed on the photocopy of the agreements purported to have been executed between the plaintiff and the defendant. Contract for sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties while sale is transfer of a ownership, a contract for sale is merely a document creating a right to obtain other document, namely, registered sale deed to complete the transaction of sale of an immovable property. Section 54 in its definition of sale does not include an agreement of sale and neither confers any proprietary rights in favour of the transferee nor by itself create any interest of charge on such property. The seller without any reasonable excuse avoids executing a sale deed, the buyers can proceed to file a suit for specific performance of the agreement. 22. As per the settled position of law, an agreement to sell does not confer valid title, as it is not a registered deed of conveyance under the T. P.Act. 23. The legal exposition in this regard has been settled by the Hon’ble Apex Court in the case of Ramesh Chand vs Suresh Chand in Civil Appeal No. 6337 of 2012 dated 1.09.2025. Therefore, the learned trial Court has rightly rejected the application filed by defendant No.1 under the provisions of Order 23 Rule 3 read with Section 151 of CPC for the dismissal of the suit. The prayer for the dismissal of the suit by defendant No.1 in the view of this Court is not sustainable in view of the provision of the law. The defendant No.1 instead of availing appropriate remedy in accordance with the law, filed the present application at the belated stage when the evidence of the plaintiff was closed and the case was listed for the evidence of the defendants. The defendant No.1 instead of availing appropriate remedy in accordance with the law, filed the present application at the belated stage when the evidence of the plaintiff was closed and the case was listed for the evidence of the defendants. As observed by the learned trial Court, defendant no.1 even did not take steps for producing his witnesses and he filed the application for dismissal of the suit under the provisions of Order 23 Rule 3 of CPC . 24. Even otherwise, there is no explanation in the application what prevented him to file the present application after filing of the written statement as admittedly the said agreements were entered after the filing of the written statement. Neither during the life time of the original plaintiff, who died in the year 2015, any such application was filed and even after the death of the original plaintiff in 2015 the present application has been instituted after elapse of more than seven years and there is no iota of explanation what prevented the defendant No.1 from placing on record the such documents. The learned trial Court has dismissed the application by taking into consideration the provision of under Order 23 Rule 3 CPC. This Court is of the opinion that defendant No.1 has not been able to make out the case for the dismissal of the suit, especially, in view of the purported photocopy of the agreements as placed on record. The learned trial court framed the issues on 03.07.2019 and the parties have been afforded opportunity to lead evidence in support of their contentions. The defendant has got the right to rebut the case of the plaintiff and to lead evidence on the issues on which onus is upon him. The application seems to have been filed just to prolong the matter. 25. The Hon’ble Apex Court has dealt with the scope of interference in a petition under Article 227 of Constitution of India in Civil Appeal No. 13801 of 2025, titled Shri Digant vs. M/S P.D.T. Trading Co. & others, has held as under:- “22. The scope of High Court’s jurisdiction under Articles 226/227 fell for consideration before a three-Judge Bench of this Court in Radhey Shyam & another v. Chhabi Nath & Ors. & others, has held as under:- “22. The scope of High Court’s jurisdiction under Articles 226/227 fell for consideration before a three-Judge Bench of this Court in Radhey Shyam & another v. Chhabi Nath & Ors. 1 This Court held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226, though they may be questioned in the supervisory jurisdiction of the High Court under Article 227 of the Constitution. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.” 26. The Apex Court has held that the judgment/order as passed by the courts below cannot be reversed/set-aside while exercising the powers under Article 227 of Constitution of India till the time, same is found to be perverse. 27. In the opinion of this Court, the impugned order does not call for any interference, therefore, the present petition being devoid of any merit is dismissed. 28. Before parting, it is made clear that any observation made here-in-above is meant only for the disposal of the present petition and the same shall not be construed to be the expression on the merits of the main case. All pending miscellaneous application(s), if any, shall also stand disposed off, accordingly.