R.S.A.No. 1346 of 2006 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1346 of 2006 (O&M) Date of decision: 12.11. 2009 Surmukh Singh (minor) ......Appellant Versus Paramjit Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Bikram Chaudhary, Advocate for the appellant. Mr.Gurcharan Dass, Advocate, for respondent No.1. **** SABINA, J. Plaintiff Paramjit Singh filed a suit for declaration and permanent injunction. The suit of the plaintiff was dismissed, whereas, the counter claim of defendant No.2 was allowed by the Additional Civil Judge (Sr.Divn.), Guhla vide judgment and decree dated 6.12.2001. In appeal, the said judgment and decree were set aside by the Additional District Judge, Kaithal vide judgment and R.S.A.No. 1346 of 2006 (O&M) 2 decree dated 7.10.2005. The suit of the plaintiff was decreed and the counter claim of defendant No.2 was dismissed. Hence, the present appeal by defendant No.2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Briefly stated, the plaintiff now appellant has filed a civil suit for declaration and permanent injunction against the defendants/respondents on the allegations that the land measuring 16 kanals detailed in para No.1(a) and 1(b) of the plaint situated within the revenue estate of village Malikpur Tehsil Guhla Disttt. Kaithal was in the ownership and possession of the plaintiff in view of the sale deed dated 6.11.1995 which was executed by defendant No.1, who was the owner in possession of the suit land. It has been alleged that defendant No.1 executed the sale deed dated 6.11.1995 for a sale consideration of Rs.1,60,000/- which was paid and possession of the land was delivered to the plaintiff at the time of registration of the sale deed. It has been alleged that defendant No.2, who is minor son of the plaintiff has R.S.A.No. 1346 of 2006 (O&M) 3 been impleaded through his mother as natural guardian and next friend and she has got no adverse interest to that of defendant No.2. It has been alleged that defendant No.1 by mis-representing the facts got filed a suit from defendant No.1, his minor son bearing civil suit no.1008 of 1995 on 21.12.1995, which was decided on 9.2.1996 titled as Surmukh Singh minor through Avtar Kaur as next friend versus Mohinder Singh regarding the suit land detailed in para No.1 of the plaint. It has been further alleged that fraud has been played upon the court by allegedly pleading family settlement between the defendants No.1 and 2 by mis-representing the true facts and as such a collusive decree in suit No.1008/95 was obtained. The plaintiff has challenged the said decree on the grounds that the decree in question was hit by the provisions of Indian Registration Act for want of registration; that the said decree does not create any right in favour of defendant No.2; that defendant No.1 was not the owner of the suit land at the time of suffering of the said collusive decree and the same was the result of concealment of factum of sale deed dated 6.11.1995 in favour of the plaintiff. The plaintiff has also challenged the mutation No.1058 in favour of defendant No.2 based R.S.A.No. 1346 of 2006 (O&M) 4 upon the said civil court judgment and decree passed in civil suit No.1008 of 1995. It has been further alleged that the plaintiff had requested to the defendants not to alienate the suit land in any manner and to get the decree set aside passed in civil suit No.1008 of 1995, but in vain. Therefore, on the aforestated allegations, the plaintiff prayed for decree for declaration that he was owner of the suit land in view of the sale deed dated 6.11.1995 and the decree passed in civil suit no.1008 of 1995 dated 9.2.1996 as well as mutation No.1058 dated 31.3.1996 were null, void and not binding upon their rights. Consequently, the plaintiff has prayed for decree for permanent injunction restraining the defendants from dispossessing the plaintiff from the suit land. 3. In response to the notice, defendant No.1 did not come present and as such, was proceeded against ex parte vide order dated 18.10.1997. 4. However, defendant No.2 filed written statement, wherein, it has been contended in the preliminary objections that the suit of the plaintiff was malafide and has been filed with a view to get benefit of the wrongs committed by defendant No.2, who was simpleton, illiterate, rustic person and taking undue advantage/benefit of simpleton behaviour of defendant R.S.A.No. 1346 of 2006 (O&M) 5 No.1, the plaintiff might have got executed the sale deed from defendant No.1 and the same was null and result of fraud and not binding upon his right as being without consideration. It has been contended that the said sale deed was without legal necessity and consideration as the suit property was ancestral Joint Hindu family coparcenary property and the sale of Joint Hindu family coparcenary property without legal necessity was void. It has been contended that the family settlement had taken place on 20.7.1995 to safe guard the necessity of defendant No.2 and the property in suit was allotted to defendant No.2, but the entry in the column of cultivation remained in favour of defendant No.1 and the suit under Section 34 of Specific Relief Act was not maintainable. On merits, it has been contended by the defendant that plaintiff was neither owner nor in possession of the suit property and the alleged sale deed dated 6.11.1995 was a waste paper and not binding upon the rights of answering defendant. It has been contended that the suit property was joint Hindu family coparcenary property and the sale was without any legal necessity and consideration and the decree in favour of defendant No.2 has rightly been suffered by defendant No.1. Defendant R.S.A.No. 1346 of 2006 (O&M) 6 No.2 has asserted the decree passed in civil suit No.1008 of 1995 as legal, valid and binding upon the rights of the plaintiff. It has been contended that the suit land has rightly been transferred in favour of defendant No.2 in view of family settlement between defendant No.1 and defendant No.2 and defendant No.1 was not competent to execute the sale deed in favour of the plaintiff, because defendant No.1 in a family settlement has transferred all rights qua the suit land in favour of defendant No.2 and since then, the defendant No.2 has been owner in possession over the suit land. By way of counter claim, defendant has pleaded that the suit property was joint Hindu family coparcenary property and the sale deed in favour of the plaintiff was without legal necessity and consideration and the same has got not binding upon the rights of defendant No.2 and the same was liable to be declared as null and void. By way of counter claim, the defendant No.2 has prayed for declaring the sale deed executed in favour of plaintiff by defendant No.1 was not binding upon the rights of the defendants and consequently restraining the plaintiff from interfering in his possession over the suit land in any manner. On the pleadings of the parties, following issues were R.S.A.No. 1346 of 2006 (O&M) 7 framed by the trial Court:- 1. Whether the plaintiff is owner in possession of the suit land as per the sale deed dated 6.11.1995?OPP 2. If issue No.1 is proved in affirmative, whether the impugned decree in civil suit No.1008 of 1995 is liable to be set aside as per the grounds mentioned in the plaint? OPP 3 Whether the present suit is not maintainable in the present form? OPD 4 Whether the plaintiff has suppressed the true and material facts from this Court, if so, its effect? OPD 4-A Whether the defendant is entitled to the relief sought of declaration and injunction by way of counter claim? OPD 5. Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration and permanent injunction that he was owner in possession of the suit land on the basis of sale deed executed by defendant No.1 in his favour. Defendant No.2-appellant, on the other hand, averred that he was owner in possession of the suit property on the basis of Civil Court R.S.A.No. 1346 of 2006 (O&M) 8 decree dated 9.2.1996 executed by defendant No.1 in his favour. The plaintiff, in order to prove that he had purchased the suit property from defendant No.1 vide sale deed dated 6.11.1995 Ex.P-3, examined PW-3 Raj Pal, Clerk from the office of Sub Registrar, PW-4 Jogi Raj, deed writer, PW-5 Jeeta Ram and PW-6 Puran Singh, attesting witnesses to the sale deed. The plaintiff also examined PW-7, Dr.Atul Singla, finger print expert, who deposed that the sale deed Ex.P-3 and Mortgage deed Ex.P-2 had been thumb marked by Mohinder Singh. Thus, the plaintiff has been successful in proving the due execution of the sale deed Ex.P-3 by defendant No.1 in his favour. A perusal of the sale deed reveals that the total sale consideration was Rs.1,60,000/-. Rs.80,000/- had been received by the seller at the time of execution of the sale deed, whereas, Rs.80,000/- had been kept by the purchaser towards payment of mortgage amount. Ex.P-2 is the mortgage deed, which was executed by defendant No.1 for a sum of Rs.80,000/-. Ex.P-1 is the receipt, as per which the plaintiff got the mortgaged land redeemed after payment of Rs.80,000/-. Thus, the learned Additional District Judge rightly held that the execution of the sale deed Ex.P-3 was duly proved by the plaintiff. The next question that arises for consideration is as to whether defendant No.1 was capable of executing the sale deed in favour of the plaintiff. Saudagar Singh, father of defendant No.1 sold the suit land vide a sale deed dated 10.8.1969. Joginder Singh filed R.S.A.No. 1346 of 2006 (O&M) 9 a civil suit No.742 of 1970/446/76 for possession by way of pre emption. The said suit was decreed vide judgment and decree dated 4.10.1975 Ex.P-28 and Ex. P-29 respectively. Thereafter, defendant No.1 filed a civil suit No.236/84 against Joginder Singh claiming ½ share in the suit property. The said suit filed by defendant No.1 was decreed vide judgment and decree dated 29.3.1984 Ex.P-26 and Ex.P-27 respectively on the basis of admission made by Joinder Singh. Thus, the suit land came to Mohinder Singh, defendant No.1 on the basis of decree Ex.P-27 and not by way of inheritance. Hence, the suit land was not ancestral property in the hands of Mohinder Singh but rather became his self acquired property. In these circumstances, defendant No.1 could dispose of the property in the manner he liked. The sale deed Ex.P-3 was executed by defendant No.1 in favour of the plaintiff on 6.11.1995 and the plaintiff also got the mortgaged land redeemed by paying the mortgage money. However, defendant No.1 suffered a decree in favour of defendant No.2 on 9.2.1996. Civil Suit No.1008/95 filed by defendant No.2 Surmukh Singh against defendant No.1 Mohinder Singh was decreed vide judgment and decree dated 9.2.1996 Ex.P-18 and Ex.P-19 respectively on the basis of admission made by defendant No.1. Since defendant No.1 had already sold the suit property, before he suffered the decree in favour of his son, he was no longer the owner of the suit property and could not suffer a decree in favour of his son. R.S.A.No. 1346 of 2006 (O&M) 10 Rather the said decree Ex.P-19 was a collusive decree obtained by defendants with a view to defraud the plaintiff and hence, learned Additional District Judge rightly held that the said judgment and decree dated 9.2.1996 and mutation No.1058 sanctioned on the basis of the same on 31.3.1996 were null and void. The suit of the plaintiff was thus rightly decreed and the counter claim filed by defendant No. 2 was rightly dismissed. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 12, 2009 anita