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PETITIONER: DEV RAJ (DEAD) THROUGH LRS.

       Vs.

RESPONDENT: HARBANS SINGH (DEAD) THROUGH LRS.

DATE OF JUDGMENT:       19/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1566            1996 SCC  (3) 596  JT 1996 (6)   225        1996 SCALE  (2)862

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard counsel on both sides.      The appellant  admittedly is  the original  owner of an extent of  18 canals  and marlas  of land.  In his  suit for declaration and  injunction, the  Trial  Court  decreed  the suit, but  on appeal,  it was  reversed. The  High Court  of Punjab and  Haryana in  Second Appeal No.600/95 on March 15, 1995 confirmed the same.      The admitted  facts are  that the  appellant being  the owner, had  sold the property to the respondent. By the date of the  sale, admittedly,  it was  subject to  hypothecation with a  bank for a sum of Rs.5,OOO/- that the respondent had to discharge.  The appellant had paid three installments, as evidenced by  the statement  of Gurdial  Singh, the clerk of the Primary  Agricultural  Bank,  Hoshiarpur.  It  was  also proved through  his evidence  that Ranjit Singh had paid the amount in  three instalments; one in the year 1975, other in December, 1976  and the  third one  in December,  1977.  One payment was  also made by Baljit Singh and final payment was made by  the appellant  himself on December 18, 1979. It is, thus, his case that he has discharged the loan taken by him, though the  sale was  executed in  favour of the respondent. The sale being a conditional sale, as the respondent had not complied with  the conditions,  he is not bound by the sale. He has  also pleaded  that he perfected his title by adverse possession. The  respondent pleaded in the written statement that the  sale was for consideration and he had got the sale transferred in  his name;  he  has  legal  possession;  and, therefore, injunction  cannot be  granted. The  trial  Court relied upon  the payments  made  by  Ranjit  Singh  s/o  the appellant and  that he  had paid  the amount. On that basis, the trial  Court came to the conclusion that the respondents have not discharged the loan.      In view  of the  specific evidence  of  Gurdial  Singh,

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clerk of  the Bank,  it is  obvious that the entire loan was discharged by  the appellant  himself. It is not the case of the  appellant  that  he  had  advanced  the  money  to  the respondent for  discharge and  on his  behalf, the appellant had paid  the debt  to the Bank. In that view of the matter, it is  obvious that  the sale  being a conditional sale, the respondent had  not complied  with the  condition, the  sale became voidable which is not in dispute. In all the mutation entries in  the Revenue  Records, the  name of the appellant continued as  the  owner.  If  really,  the  respondent  had discharged the  loans, one  would expect  that he would have got his  name mutated  in the Revenue Records. He never made such an  attempt which  would clearly  show that  he had not discharged the loan to the Primary Bank subject to which the sale was  made. The  appellate Court and the High Court have not approached  the problem  in the  proper  perspective  in reversing the decree of the trial Court.      The appeal  is allowed. Judgment and decree of the High Court in  Second Appeal  and that of the appellate Court are set aside  and that of the trial Court is restored. The suit stands decreed as prayed for. No costs.