RSA No.3469 of 2005(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3469 of 2005 (O&M) Date of decision: 2.9.2008 Sohan Lal and others ......Appellants Versus Jiwan Ram and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.K. Arora, Advocate and Mr. Baljit Puri, Advocate for the appellants. Mr. Ajay Pal Singh, Advocate for respondent No.2. Rakesh Kumar Garg, J . CM No.9187-C of 2005 For the reasons stated in the application, delay of 63 days in refiling the appeal is condoned. RSA No.3469 of 2005 By way of this appeal, the plaintiffs have challenged the impugned judgement and decree dated 9.2.2005 passed by the Additional District Judge, Sangrur upholding the judgement and decree dated 5.11.2004 of the trial Court whereby the suit of the appellants for declaring registered sale deed No.302 dated 1.2.1984 regarding land measuring 3 Bighas 19 Biswas as detailed in the head note of the civil suit, allegedly executed by defendant No.1 in favour of defendant No.2 as null and void and for a decree for permanent injunction restraining defendant No.2 from alienating the suit property or any part thereof on the basis of impugned sale deed under challenge has been dismissed. Respondent No.1 is the father of the appellants whereas RSA No.3469 of 2005(O&M) 2 respondent No.2 is the real brother of respondent No.1. Respondent No.1 was owner in joint possession of suit property along with other properties. The parties are Hindu and governed by Mitakshra School of Hindu law. The appellants have interest in the suit property by birth. It has been alleged that respondent No.1 has alienated the land measuring 3 Bighas 19 Biswas vide impugned sale deed in favour of defendant No.2, his real brother, illegally and without any legal necessity. It has been further averred that he had no right to transfer the property, the same being joint Hindu Family property. The suit was contested by the defendants. It was denied by defendant No.1 that he alienated any part of the suit property in favour of defendant No.2. It was further stated that the impugned sale deed is the result of fraud, misrepresentation and has no binding effect upon the ownership rights of defendant No.1. Defendant No.2 filed separate written statement stating inter alia that the plaintiffs have no cause of action or locus standi to file the present suit. It was also pleaded that he is a bona fide purchaser for valuable consideration and that the plaintiffs are neither the owners nor in possession of any part of the suit property and thus, the suit of the plaintiffs for declaration and permanent injunction is not maintainable. It was further pleaded that defendant No.1 was the owner in possession of the suit property and it was not ancestral joint Hindu Family and coparcenery property. It was also pleaded that the suit property is self acquired property of defendant No.1 and the same has been legally alienated in his favour vide the impugned sale deed and since the date of purchase, defendant No.2 is owner in possession of the suit property. While dismissing the suit, the trial Court held that the plaintiffs have failed to prove that the property in dispute in the hands of defendant No.1 was the joint Hindu Family and coparcenery property qua their rights. RSA No.3469 of 2005(O&M) 3 It held that since they have no interest in the property which is owned by defendant No.1 they are not entitled to declaration of permanent injunction as prayed for. The trial Court also held that defendant No.2 is the bona fide purchaser for consideration of the land in dispute. The appeal filed by the plaintiffs against the aforesaid judgement and decree of the trial Court was also dismissed by the Additional District Judge, Sangrur vide impugned judgment and decree dated 9.2.2005, thereby affirming the judgement and decree of the trial Court. The instant appeal has been filed by the appellants challenging the judgement and decrees of both the Courts below. Sh. S.K. Arora, learned counsel for the appellants has vehemently argued that it has been proved on record that the land in question is a coparcenery joint Hindu property in which the appellants have a right and interest by birth and, therefore, the suit filed by them has been dismissed erroneously. I have heard learned counsel for the appellants and perused the record of the case. I find no force in the contentions raised by the learned counsel for the appellants. The Courts below have recorded a categoric finding of fact to the effect that the appellants have failed to prove that the suit land was their joint Hindu family and coparcenery property. It has also been found by the Courts below that the suit is clearly a result of collusion between the appellants and their father i.e. respondent No.1. The appellants have alleged that the suit land has been alienated by respondent No.1 without legal necessity. Had respondent No.1 admitted having alienated it, the suit would have been maintainable but in the present case respondent No.1 himself alleges that he has not alienated the suit land and the sale deed in question is the result of fraud. The only remedy with respondent No.1 was to challenge the sale deed in the civil RSA No.3469 of 2005(O&M) 4 suit on the allegation of fraud which is not the case in hand. Instead of filing suit for himself, apparently the suit for declaration has been got instituted by respondent No.1 for declaration through his sons. For the reasons recorded above, I find that no substantial question of law arises in the present appeal and the same is hereby dismissed. September 2, 2008 (RAKESH KUMAR GARG) ps JUDGE