R.S.A. No. 3010 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3010 of 2005 (O&M) Date of decision: 23.03.2009 Ajit Singh and another ....Appellant Versus Zile Singh and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. K.S. Rekhi, Advocate, for the appellants. Mr. Rakesh Gupta, Advocate, for respondents No. 1 to 6, 8 to 10 and 12 to 16. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgments and decree dated 27.1.2001 and 28.3.2005 passed by the learned Courts below vide which the suit filed by the plaintiff/appellants for declaration and permanent injunction stands dismissed. The plaintiffs claimed that they were owners in possession by virtue of Civil Court decree dated 5.4.1980 passed in civil suit No. 100 of 1980. Defendant No. 18 Som Parkash son of Hari Ram and Mahinder Kaur suffered the aforesaid Civil Court decree in favour of the plaintiffs, under which they came in possession of the suit land, in view of warrant of possession having been issued by the learned Senior Sub Judge, R.S.A. No. 3010 of 2005 (O&M) -2- Guhla, on 22.3.1993. The decree was executed on 20.4.1993. The case set up by the plaintiffs was that defendant No. 17 Jai Pal in collusion with defendant No. 18 Som Parkash obtained a general power of attorney in his favour, and on the basis of said power of attorney, defendant No. 17 Jai Pal executed registered a sale deed bearing No. 312 dated 17.5.1994. Mutation was also sanctioned in pursuance to the sale deed. The plaintiffs challenged the sale deed to be not binding on their rights. The suit was contested. The learned Courts below upheld the sale in favour of the defendant/respondent by recording a concurrent finding of fact that sale deed was legal and valid. The plea that the plaintiffs acquired ownership under the judgment and decree, was rejected on the ground that the plaintiff/appellants failed to prove the decree passed in their favour by not producing on record the judgment, as decree was only placed on record. The learned counsel for the appellants contends that this appeal raises the following substantial question of law: - “Whether the judgments and decree passed by the learned Courts below is liable to be reversed, as in order to prove the ownership, the plaintiff/appellants were only required to produce on record the decree and not the judgment?” In support of this contention, the learned counsel for the appellants contends that right was created in favour of the plaintiff/appellants under a decree, and once decree was exhibited on record, it was not open to the learned Courts below to have rejected their claim by holding that as the judgment has not been placed or proved on R.S.A. No. 3010 of 2005 (O&M) -3- record, no title was passed on to the plaintiffs. The contention raised would have normally been accepted, in case the decree was got registered by the plaintif/appellants. It is the case of the plaintiff/appellants themselves that they had acquired the ownership in the property under the said decree. If by way of a decree, right in immovable property worth more than Rs.100/- is created for first time, it would require registration, in absence of which no title could have passed on to the plaintiff/appellants in view of law laid down by the Hon'ble Supreme Court in K. Raghunandan and others Vs. Ali Hussain Sabir and others, 2008(3) RCR (C) 699. Even otherwise, it is pertinent to notice that plaintiff/appellant gave up defendants No. 7 and 11. Thus, suit qua them stood abated, as rightly held. The learned lower appellate Court held that even if suit stood abated qua respondents No. 7 and 11, the plaintiff/appellants could still agitate the matter qua rights of other vendees. The learned counsel for the respondents by invoking the provisions of Order 41 Rule 33 CPC contends that it is open to the appellants to defend the decree on the ground other then on which the decree passed in their favour. In support of decree passed by learned Courts below, the learned counsel for the respondents contends that as appeal stood abated, against defendants No. 7 and 11 who were party in a decree passed by the learned trial Court, the appeal before this Court would also stand abated qua others in view of the law laid down by the Hon'ble Supreme Court in State of Punjab Vs. Nathu Ram, AIR 1962 Supreme Court 89 wherein the Hon'ble Supreme Court has been pleased R.S.A. No. 3010 of 2005 (O&M) -4- to lay down that abatement of appeal against one respondent results in abatement of total appeal. No fault, therefore, can be found with the judgments and decree passed by the learned Courts below holding that the judgment and decree in favour of the appellants did not confer any title in the property to challenge the sale deed in favour of the respondents, as no title was passed in favour of appellant/plaintiffs. Consequently, substantial question of law is answered against the appellants. Finding no merit in this appeal, the same is ordered to be dismissed in limine. (Vinod K. Sharma) March 23, 2009 Judge R.S.