RSA No. 3795 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3795 of 2001 Decided on : 10-02-2009 Islam and others ....Appellants VERSUS Khubi Singh and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Amit Jain, Advocate for the appellants. Mr. Shiv Kumar, Advocate for the respondents. MAHESH GROVER, J This appeal by the defendants is directed against the judgment of the learned Trial Court dated 31.5.1997 and the First Appellate Court dated 30.7.2001. The plaintiff-respondent initially filed a suit for permanent injunction seeking to restrain Bharat Singh arrayed as defendant no.1 from interfering in his peaceful possession. It was pleaded by him that he had purchased the suit property by virtue of registered sale deed executed in his favour by Bharat Singh on 6th July, 1967 and that he had been continuing in possession thereon even though mutation has not been entered in his name. It was next pleaded that defendant no.1 started interfering in his peaceful possession on 7.5.1990 and he did not restrain from his activities and as a result of which plaintiffs-respondents were forced to file the plaint on 9.5.1990. Bharat Singh in the meantime sold the property to the appellants RSA No. 3795 of 2001 2 vide sale deed dated 11.5.1990 which was registered on 14.5.1990. The respondents thereafter amended their suit and also prayed for mandatory injunction for seeking a direction that the possession be handed over to them as it was their case that the appellants had dispossessed them forcibly during the pendency of the suit. Bharat Singh was proceeded against ex parte as he did not appear before the Courts below. The appellants who contested the suit pleaded that they were bona fide purchasers and that they had purchased the suit property vide registered sale deed for a valuable consideration of Rs. 3000/-. It was pleaded that they had no knowledge of the possession of the plaintiffs-respondents and that from the revenue records it was clear that Bharat Singh continued to be owner of the property. It was thus pleaded that the sale was protected. Both the parties went to trial on the following issues:- 1) Whether the plaintiff is the owner in possession of the suit property? OPP. 1-A) Whether the defendant no. 2 to 4 are the bona fide purchasers for the valuable consideration? OPD. 2) Whether the sale deed dated 11.5.90 is null and void?OPP. 3) Whether the plaintiff has got no cause of action? OPD. 4) Whether the suit is barred by limitation? OPD. 5) Relief. It was concluded by both the Courts below that there was a valid existing registered sale deed in favour of the plaintiffs-respondents which was executed on 6.7.1967 and that they were in possession of the suit property. It was also held that the sale deed dated 11.5.1990 was not for RSA No. 3795 of 2001 3 valuable consideration as receipt of the same was not proved. Assailing the findings of the Courts below, learned counsel for the appellants has contended that the findings recorded by both the Courts below are perverse as in the plaint reference has been made to the sale deed dated 11.5.1990 even though suit was filed on 9.5.1990. It was contended that it was not conceivable that the respondent had made reference of sale deed dated 11.5.1990 in a plaint filed on an ante date and that he had knowledge of the same. He further contended that the findings recorded by both the Courts below are perverse as they have not taken into consideration the fact that they were bona fide purchasers without any notice because the revenue records depicted Bharat Singh to be the owner of the suit property. On the other hand, learned counsel for the respondents has contended that the findings recorded by both the Courts below are consistent and concurrent and do not warrant any interference. It was contended that the sale deed in their favour had been executed in the year 1967 and thereafter, the owner of the property Bharat Singh was left with no interest or title over the suit property to alienate the same in favour of the appellants. Even otherwise the sale deed was a sham transaction because receipt of any consideration before the Registrar was not proved. I have heard learned counsel for the parties and have also perused the records. The plaintiffs-respondents successfully proved the execution of sale deed dated 6.7.1967 in their favour implying thereby that Bharat Singh vendor who was owner of the property was left with no title over the suit property and was incapable of transferring it further. Besides, the facts of the case reveal that on 9.5.1990 an ex parte stay order was granted in RSA No. 3795 of 2001 4 favour of the plaintiffs-respondents and despite this fact Bharat Singh is allegedly said to have executed the sale deed in favour of the appellants on 11.5.1990 which was registered on 14.5.1990. The sale deed was executed through general power of attorney who has received a sum of Rs.500/- as part consideration for the sale. It was stipulated in the sale deed that remaining Rs. 2500/- would be paid before the Sub-Registrar. In any eventuality, there is no such endorsement regarding receipt of consideration on the sale deed which was registered on 14.5.1990 which creates a doubt in the mind of the Court as to whether such consideration was ever paid or not. The conduct of the appellants is also not above board as they have stated that they were in possession of the property for last more than two decades. There is, however, no revenue records to substantiate this plea. Apparently, the appellants tried to project their possession in order to dilute the effect of sale deed dated 6.7.1967 by creating a sham document of sale. In this view of the matter, when the sale deed dated 6.7.1967 has been proved, I am of the considered opinion that the findings recorded by both the Courts below cannot be termed to be perverse or erroneous. No substantial question of law has been shown to have arisen in the present appeal and the same being devoid of any merit is hereby dismissed. February 10, 2009 (Mahesh Grover) rekha Judge