IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2968 of 2009 (O&M) Date of Decision:22.11.2010 Gurdev Singh and another .....Appellants Vs. Ajay Anand Arora and others .....Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. G.N. Malik, Advocate for the appellants. **** RAKESH KUMAR GARG, J. Defendants No.14 and 15 have filed this appeal challenging the judgments and decrees of the Courts below whereby suit of the plaintiffs- respondents for declaration to the effect that they were owner in possession of the suit land with further declaration that the sale deed dated 13.9.1995 executed by Kuldeep Kumar – defendant No.2 in favour of defendant No.15 in respect of land measuring 5 kanal 10 marlas and a lease deed dated 25.7.1995 executed and got registered by defendant No.2 in favour of defendant No.14 for land measuring 28 kanals were null and void and were not binding upon the rights of the plaintiffs, was decreed. As per the averments made in the suit, plaintiff and his father Ram Lal alias Ram Chander migrated to India at the time of partition from Pakistan and the suit land was allotted to him in lieu of ancestral land left by him in Pakistan. Thus the suit property was ancestral, coparcenary, Joint R.S.A. No.2968 of 2009 (O&M) -2- Hindu Family Property of the plaintiff. Inder Sain brother of the plaintiff in whose name, the suit land was standing had expired issueless on 3.5.1993. Krishan Lal and Jawala Dass two other sons of Ram Chander alias Ram Lal i.e. (brothers of plaintiff) had pre-deceased Inder Sain. Four daughters of Ram Chander, namely, Lajwanti, Krishna, Kaushalya and Devki were not having any share in the suit property being sisters and were already married and residing at their in-laws' house. Thus, the plaintiff inherited the suit property alongwith all other moveable properties of the deceased being coparcenary and only legal heir of the deceased and was the exclusive owner. It was the further case of the plaintiff that defendants No.1 and 2 prepared a bogus will dated 16.4.1986 alleged to have been executed in their favour by Inder Sain regarding the suit property. The alleged Will dated 16.4.1986 and the mutation No.246 entered on the basis of the aforesaid Will and the order dated 20.5.1995 passed by the Assistant Collector IInd Grade regarding sanction of mutation, were an act of fraud and fabricated documents and were illegal, null and void and not binding upon the rights of the plaintiff. Defendant No.2 sold land measuring 5 kanal 10 marlas to defendant No.15 vide registered sale deed dated 13.9.1995 and 3 kanals 0 marla to Salamu Deen - defendant No.16 and also leased out land measuring 28 kanals to defendant No.14 vide registered lease deed dated 25.7.1995 which were also illegal. On the basis of the aforesaid documents, the defendants were threatening to interfere into the peaceful joint possession of the plaintiff. Hence the suit. Upon notice, defendants appeared and resisted the claim of the R.S.A. No.2968 of 2009 (O&M) -3- plaintiff. Defendants No.1 and 7 filed their joint written statement alleging that Ram Chander was the exclusive owner of the suit property which was allotted to him in lieu of his properties left in Pakistan but all the sons of Ram Chander were living separate and engaged in their own business and profession and daughters being married were living in their respective inlaws' house and, therefore, they did not constitute joint Hindu family. The plaintiff never inherited the suit property as alleged rather the properties left by the deceased Inder Sain devolved upon his heirs in seven equal shares as per natural succession. It was further submitted that defendant No.2 had obtained the Will dated 16.4.1986 and had incorporated the name of defendant No.1 without his knowledge and consent. The remaining pleadings of the plaintiff were denied and dismissal of the suit was prayed. Defendants No.2 and 3 filed their separate written statement reiterating the fact as alleged by the defendants No.1 and 7 in their written statement alleging further that the deceased Inder Sain was competent to execute the Will regarding his own properties and the Will dated 16.4.1986 was a valid document which was executed by him in lieu of the services rendered by him. The sale deeds in favour of defendants No.15 and 16 and lease deed in favour of defendant No.14 were legally and validly executed by him and the subsequent proceedings on the basis of the aforesaid documents were also legal. In the end, dismissal of the suit was prayed. Defendant No.4 filed separate written statement resisting the claim of the plaintiff. Defendants No.8 to 13 filed their joint written statement on the lines of the written statement filed by defendants No.1 and 7. R.S.A. No.2968 of 2009 (O&M) -4- Defendants No.14 and 15(now appellants) filed their joint written statement resisting the claim of the plaintiff alleging that the Will dated 16.4.1986 in favour of defendants No.1 and 2 was legal and valid. Defendant No.15 was a bonafide purchaser of the suit land measuring 5 kanal 10 marlas from defendant No.2 vide sale deed dated 13.9.1995 and was protected under the law. The lease deed dated 25.7.1995 in favour of defendant No.14 was for a valuable consideration by way of registered lease deed and was executed after making inquriries from the revenue record. Defendant No.14 was also in cultivating possession of that land as lessee and being bonafide transferee, his rights were also protected under the law and the dismissal of the suit was prayed for. Defendant No.16 also filed his separate written statement on the lines of the written statement filed by defendants No.14 and 15. It is pertinent to mention that no one appeared on behalf of defendants No.2, 3, 5, 6 and 16 and they were proceeded against ex parte vide order dated 24.4.2001, 26.9.1997 and 21.2.2007 respectively. The plaintiff filed replications controverting the averments of the written statements filed by the defendants and reaffirming his pleas as mentioned in the plaint. After perusing the evidence on record and hearing the learned counsel for the parties, the trial Court held that the defendants No.1 and 2 had failed to produce on record any Will qua the fact that they have become owners of the suit property on the basis of Will dated 16.4.1986 and no evidence was adduced by the plaintiff to prove the fact that only he was entitled to succeed the entire property owned by Inder Sain (deceased). R.S.A. No.2968 of 2009 (O&M) -5- Accordingly, all the descendants of the deceased Ram Chander i.e. (defendants No.1 to 13) were held entitled to succeed his entire property as per the provisions of the Hindu Succession Act except the land measuring 5 kanal 10 marlas sold to defendant No.15 who was held to be a bonafide purchaser. The trial Court also held that the parties were also bound by the terms and conditions of the lease deed executed by defendant No.2 in favour of the defendant No.14 and resultantly the suit was partly decreed on the basis of the aforesaid findings. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, an appeal was carried out by the plaintiff- respondent before the lower appellate court. The lower appellate court vide impugned judgment and decree dated 7.1.2009 modified the findings of the trial court on Issue No.1 and accepted the appeal to the extent that the sale deed dated 13.9.1995 in favour of defendant No.15 and lease deed dated 12.7.1995 in favour of defendant No.14 executed by defendant No.2 were invalid and illegal beyond the share of defendants No.2 and 3 and that remaining natural heirs of Inder Sain were not bound by the sale deed Ex.P5 and lease deed Ex.P7 to the extent of their own share except the share of defendants No.2 and 3. Defendants No.14 and 15 (appellants) were also restrained to alienate the suit land in any manner beyond the share of their transferor. Defendant No.16 was also restrained from alienating the suit land in any manner. Remaining part of the impugned judgment and decree of the trial court was affirmed. Feeling aggrieved from the aforesaid judgment and decree of R.S.A. No.2968 of 2009 (O&M) -6- the lower appellate court, defendants No.14 and 15 have approached this Court by way of instant appeal submitting that the following substantial questions of law arises in this appeal:- (i) Whether the appellants are protected under Section 41 of the Transfer of Property Act? (ii) Whether the appellants are bonafide purchasers? (iii) Whether the entries in the revenue record show that defendant No.2 Kuldeep Kumar is owner and in possession of the suit land? (iv) Whether the findings of the Ld. Lower Appellate Court is against the settled law of the land? (v) Whether the purchaser is required to inquire into the genuineness of the documents when the entries in the revenue record show that the transferor is owner and in possession of the land?” Learned counsel appearing on behalf of the appellants has vehemently argued that the lower appellate court has failed to appreciate the fact that the appellants were protected under Section 41 of the Transfer of Property Act as they were bonafide purchasers and had purchased the property after perusing the revenue record, wherein the entries were made in favour of defendant No.2. Moreover, defendant No.2 was in possession of the suit property and after execution of the sale deed and lease deed, the possession was delivered to the appellants. Thus, the lower appellate court had wrongly came to the conclusion that the appellants were not bonafide purchasers and the judgment and decree of the lower appellate court was R.S.A. No.2968 of 2009 (O&M) -7- liable to be set aside. I have heard the learned counsel for the appellants and perused the impugned judgments and decrees of the courts below. Admittedly, the property in dispute was entered in the name of defendant No.2 on the basis of alleged Will dated 16.4.986 which was not accepted by both the Courts below. Thus any transfer made by defendant No.2 of the suit property on the basis of defective title will not clothe the sale deed dated 13.9.1995 and lease deed dated 25.7.1995 in favour of the appellants with legality. Not only this, while dealing with this issue, the lower appellate court has found that appellant Gurdev Singh in his cross- examination has admitted that no inquiry was made by them before the transfer of suit land. The lower appellate court while recording findings against the appellants also found that the revenue record (jamabandi) Ex.P1 for the year (1989-1990) shows that suit land was in possession of tenants, namely, Veerana son of Mangat and one Kashmira and Gurdev Singh – appellant while appearing as DW3 had further stated that he had filed a petition for eviction against Veerana- tenant and the same was decided in his favour. This admission of Gurdev Singh appellant shows that defendant No.2 - Kuldeep Kumar was not in possession of the land, rather Gurdev Singh had to file a petition for eviction against the tenant for the land which was taken on lease by him. There is nothing on record to show that any inquiry was made on behalf of defendant No.15 at the time of execution of the sale deed. No one has stepped into witness box to support the claim of the appellant Pushpinder Singh. Passing reference of inquiry about the title of the defendant No.2 in his statement by Gurdev Singh- appellant is not R.S.A. No.2968 of 2009 (O&M) -8- sufficient to show that any reasonable and bonafide inquiry before transfer was made by the appellants and thus, they cannot claim protection under Section 41 of the Transfer Act. In view of the aforesaid discussion, I find no perversity in the findings of the Courts below. No substantial question of law arises. Dismissed. November 22, 2010 ( RAKESH KUMAR GARG ) renu JUDGE