Regular Second Appeal No.4009 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.4009 of 2008 Date of decision: 05.08.2009 Chasam Pal Singh son of Shri Parminder Singh son of Shri Kapoor Singh, resident of village Mohanpur, Tehsil Thanesar, District Kurukshetra. ..... Appellant. Versus 1. Sant Singh, 2. Mansa Singh sons of Shri Ram, residents of Dera in the field of Mouja Kalsana, Tehsil Thanesar, District Kurukshetra. ..... Respondents. 3. Rambir Singh son of Rajinder Singh son of Kapoor Singh, 4. Inderjit Kaur, widow of Rajinder Singh son of Shri Kapoor Singh, both residents of village Mohanpur, Tehsil Thanesar, District Kurukshetra. .... Proforma respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Om Parkash Sharma, Advocate for the appellant. Regular Second Appeal No.4009 of 2008 -2- Sham Sunder, J. This Regular Second Appeal is directed against the judgment and decree dated 17.09.2005, rendered by the Court of Additional Civil Judge, (Senior Division), Kurukshetra, vide which it decreed the suit of the plaintiffs and the judgment and decree dated 13.09.2008, rendered by the Court of Additional District Judge, Kurukshetra, vide which it dismissed the appeal. 2. The brief facts of the case, are that defendants/proforma respondent nos. 3 and 4 claimed themselves to be the owners in possession of land measuring 151 kanals 1 marla alongwith tubewell, being 3021/6043 share, in the total land measuring 302 kanals 3 marlas comprising khewat No.122, khatoni no.183, total kittas 44, situated at village Kalsana, Tehsil Thanesar, District Kurukshetra, as Regular Second Appeal No.4009 of 2008 -3- per jamabandi for the year 1990-91. They entered into two separate agreements dated 22.2.1995, in respect of the aforesaid land in favour of the plaintiffs. The earnest money of Rs.2,50,000/- was paid to them, at the time of execution of the said agreements. The sale deed was to be executed and got registered, on or before 21.5.1995.Thereafter, defendants/ proforma respondent nos. 3 and 4 sold their land measuring 147 kanals 1 marla, alongwith tubewell, in favour of the plaintiffs in part performance of the agreements to sell dated 22.2.1995, vide registered sale deed no.146 dated 09.05.1995, for a sale consideration of Rs.3,31,500/-. Thus the plaintiffs/respondents, became the owners in joint possession of land measuring 147 kanals 1 marla, except share in khasra no.21(8-0). The defendants/proforma respondent nos. 3 and 4 suffered the decree dated 09.05.1995, passed in Civil Suit No.306 of 1995, titled as Chasam Pal Regular Second Appeal No.4009 of 2008 -4- Singh v. Ranbir Singh and another, passed by the Court of Shri Manjit Singh, the then Sub Judge Ist Class, Kurukshetra, in respect of land measuring 4 kanals 7 marlas, comprising khewat no.122. It was further stated that the said judgment and decree dated 09.05.1995 were illegal and inoperative against the rights of the plaintiffs, on the grounds, that the defendant/appellant had no pre-existing right in the land transferred in his name by way of the impugned judgment and decree; that the impugned decree was not registered and the same did not have the effect of conferring right, title or interest on the defendant/appellant in respect of the land, which was the subject matter of the said decree; that the judgment and decree were collusive; that there was no question of any family settlement,between the defendant/ appellant and defendants/ proforma respondent nos. 3 and 4 as they did not Regular Second Appeal No.4009 of 2008 -5- constitute any Joint Hindu Family; that the defendants/proforma respondent nos.3 and 4 had already entered into two separate agreements to sell dated 22.02.1995 and, thus, they were not competent to enter into any family settlement with the defendant/appellant; that the stamp papers for execution of the sale deeds were purchased on 4.5.1995 by the defendants/ proforma respondent nos.3 and 4, but they concealed this fact, while filing their admission written statement in the suit aforesaid and, thus, a fraud was played upon the plaintiffs/ respondents; that the impugned decree was a sham transaction having been suffered in order to harm and harass the plaintiffs/respondents; that the impugned decree was without consideration and had no legal force; that no possession of the suit land was delivered to the defendant/appellant and the impugned decree was a nullity; and that the said Regular Second Appeal No.4009 of 2008 -6- decree was obtained inter-se by the defendants in conspiracy with one another. It was further stated that the defendants, on the basis of said decree wanted to alienate the suit land. It was further stated that the defendants were asked many a time, not to do so, as the decree was not operative against the rights of the plaintiffs, but to no avail. On their final refusal, to admit the claim of the plaintiffs, left with no alternative, a suit for declaration with consequential relief of permanent injunction was filed by the plaintiffs. 3. Defendant no.1, put in appearance, and contested the suit, by way of filing written statement, wherein, it was averred that the suit was not maintainable; and that the plaintiffs were estopped by their own act and conduct, from filing the suit. It was stated that defendant no.1 was a co-sharer in the suit land. It was admitted that no doubt the Regular Second Appeal No.4009 of 2008 -7- plaintiffs purchased some land from the defendants/proforma respondent nos.3 and 4 but the details given in the sale deeds were not correct. It was denied that the stamp papers for the execution of the sale deeds were purchased on 4.5.1995. It was further stated that the judgment and decree dated 9.5.1995 were legal and valid. It was further stated that defendant no.1 had pre-existing right in the suit land and had become owner of land measuring 4 kanals 7 marlas by way of family settlement. The remaining averments contained in the plaint were denied, being wrong. 4. Defendant nos.2 and 3, put in appearance, and contested the suit, by way of filing joint written statement, wherein, the execution of agreements to sell dated 22.2.1995, in favour of the plaintiffs, was admitted. It was further admitted that defendants/proforma respondent nos. 3 and 4 had executed two Regular Second Appeal No.4009 of 2008 -8- sale deeds dated 09.05.1995 in favour of the plaintiffs, in respect of land measuring 147 kanals 1 marla, in part performance of the agreements to sell dated 22.2.1995. It was further stated that the defendants/proforma respondent nos. 3 and 4 were still owners of the remaining land measuring 4 kanals, which was joint with the other co-sharers and they were in joint possession of khasra no.21 min(4-0). It was further stated that they had never suffered the impugned decree, in favour of the defendant/appellant. It was further stated that no family settlement was arrived at nor the plaintiff was a family member of the defendants/ proforma respondent nos.3 and 4, and no transfer could be made without consideration and registration of the decree. It was further stated that they ( defendants / proforma respondent nos. 3 and 4) had already challenged the impugned decree, by filing a Civil Suit, Regular Second Appeal No.4009 of 2008 -9- which was pending. The remaining averments, contained in the plaint, were denied, being wrong. 5. From the pleadings of the parties, the following issues were framed by the trial Court :- “1- Whether the judgment and decree dated 09.05.1995 of Civil Suit No.306 of 1995 passed by Shri Manjit Singh, Sub Judge Ist Class, Kurukshetra, in favour of defendant no.1 and subsequent revenue record based on the said judgment and decree were illegal, null, void, inoperative, ineffective, ultra- virus and against the law and facts ?OPP 2- Whether the plaintiffs are in lawful possession of land, detailed in para no.1 of the plaint ?OPP 3- Whether the suit of the plaintiffs is not maintainable in its present form ?OPD 4- Whether the plaintiffs are estopped by their own act and conduct from Regular Second Appeal No.4009 of 2008 -10- filing the present suit ?OPD 5- Whether the plaintiffs have not come with clean hands in the Court and have suppressed the material facts ?OPD 6- Relief.” 6 The parties led evidence in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit of the plaintiffs. 7. Feeling aggrieved, an appeal was preferred by the appellant/defendant(Chasam Pal Singh), which was also dismissed by the Court of Additional District Judge,Kurukshetra, vide its judgment and decree dated 13.09.2008. 8. Still feeling dis-satisfied, the instant Regular Second Appeal, has been filed by the appellant/defendant(Chasam Pal Singh). Regular Second Appeal No.4009 of 2008 -11- 9. I have heard the Counsel for the appellant, and have gone through the documents, on record, carefully. 10. The Counsel for the appellant submitted that the plaintiffs (now respondents) had no locus standi to challenge the decree, in question. He further submitted that there was a family settlement between the defendant (now appellant) and respondent nos. 3 and 4, as a result whereof, they filed a written statement of admission and the decree was passed. It was further submitted that , thus, the appellant had pre-existing right on the basis of family settlement in the property, in question, and the decree dated 09.05.1995 was legal and valid and did not require any registration. It was further submitted that the decree was passed prior to the execution of the sale deeds by proforma respondent nos. 3 and 4, in favour of the plaintiffs/respondent nos. 1 and 2. He further submitted that the Courts Regular Second Appeal No.4009 of 2008 -12- below, did not properly appreciate the evidence, on record, and, thus, illegally decreed the suit. 11. After giving my thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, in my considered opinion,the appeal deserves to be dismissed,for the reasons to be recorded hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at, by the trial Court, and first Appellate Court, even if, the same are grossly erroneous as the legislative intention, was very clear that the legislature never wanted second appeal Regular Second Appeal No.4009 of 2008 -13- to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of the Courts below, is confined only to the hearing of substantial questions of law. The First Appellate Court was right in holding in para no. 12 of the judgment that there was nothing to show, as to how, the defendant/appellant, constituted “family” with the defendants/proforma respondent nos. 3 and 4. The appellant could not disclose his relationship with defendants no. 3 and 4. In this view of the matter, there could not be any family settlement. The First Appellate Court was also right, in holding that, there was no pre-existing right in the land, measuring 4 kanals 7 marlas, in favour of the appellant, as such, the decree, created right in immovable property more than Rs.100/- for the first time. Thus, it required registration, in the absence whereof, it Regular Second Appeal No.4009 of 2008 -14- did not create any right of ownership. The First Appellate Court was also right in holding that once the land on the same day, had been sold, in favour of the plaintiffs, on the basis of the agreements to sell, after receipt of the entire sale consideration, they could not be divested of their ownership qua 7 marlas of land, which stood sold to them, by way of the impugned decree, in favour of the appellant. The Courts below held that since the decree was ineffective, against the rights of the plaintiffs, whether the same was suffered on the same day, earlier to the execution of the sale deeds, was hardly of any consequence. The concurrent findings of the Courts below, on the aforesaid points, being based on the correct appreciation of evidence, and law on the point, do not suffer from any illegality or perversity, warranting the interference by this Court. The submission of the Counsel for the appellant, being Regular Second Appeal No.4009 of 2008 -15- without merit, must fail, and the same stands rejected. 12. No question of law, much less substantial, arises in this appeal, for the determination of this Court. 13. For the reasons recorded above, the appeal being devoid of merit, must fail and the same stands dismissed with costs. ( Sham Sunder ) 05.08.2009, Judge dinesh