MITAL, C. J. - (1.) THIS is a Revision filed against the order dated 13. 4. 1992 of the District Judge, Sirohi.
(2.) SARJOO Dass filed a suit against both the defendants for declaration that he is the owner of the land in question and also prayed for permanent injunction to restrain the defendants not to interfere with his possession. The plaintiffs case is that defendant No. l Jan Mohd. agreed to sell a residential plot to the plaintiff Sarjoo Dass for Rs. 1800/- vide agreement dated 25. 6. 79 and delivered the possession to the plaintiff. Rs. 1000/- were paid at the time of agreement as advance money and another sum of Rs. 600/-were paid on 6. 12. 79 and the remaining Rs. 200/- were to be paid at the time of the execution of sale-deed. It is also averred in the plaint that when the plaintiff made enquiries from the Gram Panchayat and Tehsil he learnt on 6. 9. 91 that the suit land had already been sold by a registered sale-deed dated 19. 10. 87 by defendant No. l Jan Mohd. to defendant No. 2 Ramzan Khan. Along with the suit an application for grant of temporary injunction was filed and the same was dismissed by the trial court but on plaintiffs appeal the learned lower appellate court allowed the appeal and injuncted the subsequent vendee from interfering in plaintiff's possession. The defendant Ramzan Khan has come in Revision against the said order. After hearing the learned counsel for both the sides and after going through the case, I am of the view that the Revision must succeed.
(3.) IT is not in dispute that the title of the land in dispute never passed to the plaintiff because no sale-deed was ever executed in his favour. After the agreement dated 25. 6. 79, the plaintiff took no steps whatsoever for full 12 years for seeking specific performance of the said agreement to sell which gives credence to the contention raised by the defendants in their written statement that after the said agreement the plaintiff lost interest in the land and he himself came with defendant No. 2 to defendant No. l and made a proposition that the later may sell the land to the former. On the point of possession the learned trial court concluded that the possession of the plaintiff is not proved. This fact was further corroborated by the report of the local Commissioner who was appointed by the learned appellate court. The report of the Commissioner dated 21. 1. 92 along with the map goes to show that the walls of two rooms stood raised to the roof level at the time of inspection and some more construction material was lying on the site, although no construction activity was in progress when the Commissions visited the disputed place. Neither the plaintiff raised any objection to the factual aspect of the report of the Commissioner nor the learned appellate court has given any reason to suspect the veracity of the report. This is not the contention of the plaintiff that the construction referred to in the report of the Commissioner have been raised by him and the material on the sport belongs to him. In view of the aforementioned clear-cut position, there was no occasion for the appellate court to differ with the finding of the trial court on the point of possession but the learned appellate Judge disagreed with the trial court on this point on a very flimsy argument that since the agreement to sell makes a mention of delivery of possession to the plaintiff and execution of the agreement of sale is admitted in the written statement, this amount to admission of plaintiff's possession by the defendants, whereas the defendants in para 2 of their written statement have categorically denied that the possession of the land was ever delivered to the plaintiff. ;