RSA No.3723 of 2009(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3723 of 2009(O & M) Date of Decision:06.09.2010 Jagsir Singh .... appellant Versus Registrar, Co-operative Societies, Chandigarh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.N.K.Manchanda,Advocate for the appellant **** RAKESH KUMAR GARG J. CM No.11294-C of 2009 For the reasons mentioned, delay of 2 days in refiling this appeal is condoned. CM disposed of. CM No.11295-C of 2009 Ciil Misc.application is allowed subject to all just exceptions. Applicant is brought on record as legal representative of Niranjan Singh, only to pursue this appeal. CM No.11297-C of 2009 Civil Misc.application is allowed subject to just exceptions. CM disposed of. RSA No.3723 of 2009(O & M) This is plaintiff's second appeal challenging the judgement and decrees of the courts below whereby his suit for declaration that he is RSA No.3723 of 2009(O & M) 2 the owner of the suit land on the basis of auction dated 07.01.1981 with further prayer of mandatory injunction and also claiming entitlement of issuance of sale certificate along with warrant of possession and in the alternative for payment of a sum of Rs.6676.85 along with interest from the date of deposit with consequential relief of permanent injunction, was dismissed. As per the pleadings, Naranjan Singh, father of the appellant filed a suit on the averments that defendant No.5 [ i.e.Arjan Singh s/o Bhola Singh(predecessor-in-interest) of respondents No.5(i) to 5(vi)] had taken a loan from The Faridkot Primary Co-operative Land Mortgage Bank Limited, Faridkot and was declared a defaulter. Plaintiff Naranjan Singh, purchased the suit land measuring 25K-5M bearing khasra Nos.3170M(10-9) and 3176/2(14-16) in an open auction held on 07.01.1981. Plaintiff being the highest bidder deposited an amount of Rs.6676.85 P whereas, the auction amount was Rs.5995.60 P. Defendant No.5 never challenged the aforesaid auction which became final. Plaintiff requested the department for issuance of sale certificate and possession warrant but nothing was done on the pretext that file was misplaced. Since defendant No.5(i) to 5(vi) (LRs of defendant No.5 Arjan Singh)were threatening to alienate the suit land without any right to do so, the necessity arose to file the present suit. Defendants No.2 to 4 and 5(iii) were proceeded against ex parte by the trial Court and suit against defendants No.5(ii) and (iv) to (vi) was dismissed under Order 9 Rule 2 CPC vide order dated 06.02.2006. Defendant No.5(i) i.e.Bikkar Singh son of Arjan Singh contested the suit and filed written statement raising various preliminary objections. On merits, it was submitted that Arjan Singh, defendant No.5 was never a defaulter of the defendant society. No auction ever took place as alleged by the plaintiff and he never purchased any land. No RSA No.3723 of 2009(O & M) 3 particulars of auction and amount of auction were given. The defendant being owner of the suit property had every right to alienate the same which was in his possession. Rest of the paras of the plaint were denied and dismissal of the suit was prayed for. No replication was filed. From the pleadings of the parties, the following issues were framed: 1. Whether the plaintiff is entitled to the declaration as prayed?OPP 2. Whether the plaintiff is entitled to the relief of permanent injunction as prayed?OPP 3. Whether the suit is not maintainable in the present form?OPD 4. Whether the suit is bad for misjoinder of the parties?OPD 5. Whether the suit is bad for misjoinder of cause of action?OPD 6. Whether the plaintiff has no locus standi to file the present suit?OPD 7. Whether the suit is badly time barred?OPD 8. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction?OPD 9. Relief. Under issues No.1 and 2, the trial Court held that the plea of the appellant that he purchased the land in dispute in open auction on 07.01.1981 and has become owner on the basis thereof, cannot be accepted as no evidence has been brought on record by him to show that the land was purchased by him in an open auction. Issues No.3 to 6 were decided against the defendants being not pressed. Under issue No.7, it was held that the alleged auction was held on 07.01.1981, whereas the present suit was filed on 15.09.2001 and therefore the suit was hopelessly RSA No.3723 of 2009(O & M) 4 time barred. Under issue No.8, it was held that plaintiff has failed to affix the required court fees. In view of the findings on issues No.1,2,7 and 8 as aforesaid, the suit of the plaintiff was dismissed. Appeal filed by the plaintiff against the aforesaid judgment and decree of the trial Court was also dismissed by the District Judge, Faridkot vide impugned judgment and decree dated 08.11.2008. While dismissing the appeal, the Lower Appellate Court, observed as under: “Before the learned Lower Court the plaintiff Naranajan Singh alleged that on 07.01.1981 he purchased the suit land measuring 25 kanals 5 marlas comprising of khasra No.3170M(10-9) and 3176/2(14-16) situated in village Golewala. This land had been put to auction by the Assistant Registrar Co-operative Societies, Faridkot as the loanee/purchaser Arjan Singh became defaulter. He claims to have turned up to be the highest bidder in the auction and deposited Rs.6676.85 with the Co-operative Societies on 07.01.1981 and 16.12.1981. The plaintiff claims to be the owner of the suit land being the highest bidder, but before the learned Lower Court he failed to prove his claim. He could not produce on record any sale deed or sale certificate or any other document showing himself to be the purchaser or the owner of the suit land. He has contended that the auction file has been misplaced by the defendants departments intentionally. All the same he could not produce any secondary evidence. He could not produce any receipt showing the deposit of auction money by him with the Auctioneer. It is for the person, who claims himself to be the auction purchaser to prove that he has purchased RSA No.3723 of 2009(O & M) 5 the property in the auction. Negative is not to be proved by the other party. Apart from that he claims to have purchased the suit land in auction in the year 1981(on 07.01.1981, to be more precise). The suit for declaration should have been filed by him within three years from the date of alleged purchase, but he filed the suit for declaration, mandatory injunction and permanent injunction before the learned Lower Court only on 15.09.2001 which was hopelessly time barred. His relief for mandatory injunction or permanent injunction was based on the main relief of declaration, which was in itself hopelessly time barred therefore he was not entitled to the relief of declaration or the mandatory injunction or the permanent injunction after 20 years. The learned Lower Court has appreciated all these aspects and has rightly decided the different issues and rightly dismissed the suit for declaration, mandatory injunction and permanent injunction. There is no ground to interfere into the findings recorded by the learned Lower Court on different issues, which are up held in appeal. Consequently, I find no merit in the appeal filed by the appellant-plaintiff Naranjan Singh, which is ordered to be dismissed with costs. Decree sheet be prepared accordingly. Lower Court file be sent back and the appeal file be consigned.” Still not satisfied, the present appeal has been filed by Sh.Jagsir Singh, appellant, who is alleging to be the legal representative of Naranjan Singh, who died on 09.02.2009 after the decision of District Judge, Faridkot. Challenging the impugned judgement and decrees, learned RSA No.3723 of 2009(O & M) 6 counsel for the appellant has vehemently argued that findings of both the courts below are erroneous and incorrect as it was proved on record that Naranajan Singh, father of the appellant had purchased the land in an auction held on 07.01.1981 but respondents No.1 to 4 have not issued, sale certificate and possession warrants, on the pretext of file having been misplaced. Moreover, appellant Naranjan Singh moved an application under Order 23 Rule 1 CPC for withdrawal of the suit with permission to file fresh suit on 08.11.2008 before the Lower Appellate Court and the same was wrongly rejected vide separate order on 08.11.2008 as the Lower Appellate Court has failed to appreciate that the auction proceedings were still pending before the authorities under the Punjab Co-operative Societies Act,1961 and the suit was not maintainable since the Civil Court has no jurisdiction and thus the following substantial questions of law arise in this appeal: 1. Whether the courts below have committed illegality in accepting the suit of the respondent? 2. Whether there is a total misreading of the facts and evidence on the record by the learned both the courts below while ignoring the relevant and material piece of documentary evidence on record which is serious error in law having vitiating effect on the findings? 3. Whether the findings of the courts below, which are perverse and based upon total misreading of the evidence can be sustained in the eyes of law? 4. Whether grave and manifest injustice is being done to the appellant? I have heard learned counsel for the appellant and perused the impugned judgement and decrees. Both the courts below on appreciation of evidence have RSA No.3723 of 2009(O & M) 7 recorded a concurrent finding of fact that appellant has failed to prove his plea that Naranjan Singh had purchased the suit land in an auction on 07.01.1981 and has become owner of the suit property. Even before this Court, learned counsel for the appellant was unable to point out any material evidence which is on the record and has not been considered by the courts below. The courts below held that the evidence placed on record do not have any bearing and was not sufficient to prove that any auction ever took place. In this view of the matter, it cannot be held that the findings of the courts below are perverse and are liable to be set aside. While dismissing his application under Order 23 Rule 1 CPC, the Lower Appellate Court has observed that the appellant was unable to prove his case and there was no ground to grant him permission to withdraw the suit and file a fresh suit on the same cause of action and filing of the application was an abuse of the process of law. Learned counsel for the appellant could not substantiate his claim to withdraw the suit with permission to file fresh one on the same cause of action. Therefore, the impugned judgement and decree does not suffer from any illegality. No substantial question of law, as argued, arises. Dismissed. CM No.11296-C of 2009 Since the appeal has been dismissed on merits, the application for condonation of delay of 83 days in filing the appeal also does not survive. (RAKESH KUMAR GARG) JUDGE 06.09.2010 neenu