R.S.A.No. 2554 of 2009(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2554 of 2009(O&M) Date of Decision:July 15, 2009 Balwan Singh and others ---Appellants versus Sher Singh and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. S.P.Chahar,Advocate, for the appellants. *** SABINA, J. Plaintiffs had filed a suit for declaration that they were owners in possession of the suit land. Additional Civil Judge (Junior Division), Rohtak, vide judgment and decree dated 7.11.2006 dismissed the suit of the plaintiffs. Aggrieved by the same, plaintiffs preferred an appeal and the same was allowed by Additional District Judge, Rohtak vide judgment and decree dated 24.12.2008. Hence, the present appeal by the defendants. The facts of the case as noticed by the learned Additional District Judge, in paras 2 to 5 of its judgment read as under:- “Briefly stated, the allegations of the plaintiffs are that they and defendant No. 1 are the heirs of common ancestor, namely R.S.A.No. 2554 of 2009(O&M) {2} Udey Ram as shown in pedigree table in para No. 1 of the plaint. Richhpal their predecessor-in-interest and Jaimal the father and prede4cessor-in-interest of defendant No. 1 were the owners in equal shares of the suit land. Jaimal sold his entire ½ share in the suit land showing the land mentioned in para no. 3 of the plaint to behis half share measuring 53 kanals 16 marlas to Shri Ram. Rati Ram, and Ram Niwas vide sale deed no. 1234 dated 27.5.1957. Against this sale deed, they filed a suit for possession of the sold land by way of preemption which was decreed, so, the suit land came to their ownership and possession on the basis of decree passed in preemption suit in their favour. Thus, the defendant No. 1 or anybody else who is the successor-in-interest of Jaimal, has no right or title in the suit land. Due to clerical mistake in the revenue record committed by Halqa Patwari, the name of Jaimal continued to be recorded as owner of ½ share which was illegal in the eyes of law because he had already sold away his share. The defendant No. 1 now taking the benefit of wrong entries wants to take the flood relief fund and to dispose of the suit land. He has even sold the land which is the half share of the land situated in khasra No. 32//11, 33.6/1 and 56/12 measuring 9 kanals 3 marlas to defendants No. 2 to 5 on 27.2.1997 i.e. During the pendency of the suit. This transfer is hit by the provisions of Section 52 of Transfer of Property Act. They requested the defendants to admit their claim but they have R.S.A.No. 2554 of 2009(O&M) {3} refused. Hence, the suit. The defendant No. 1 in his written statement has pleaded that the plaintiff have no cause of action and locus standi to file and maintain the present suit as they were neither owners nor in possession of the suit land. The suit is false, frivolous, null and void and time barred. The civil court has no jurisdiction to entertain the suit. Jaimal his father has never sold his share in the suit land as alleged by the plaintiffs and others constituted a Joint Hindu family, so if there was any kind of sale on the part of his father, the same amount4d to be on behalf of Richhpal and his father Jaimal. He is the absolute owner in possession of his share in the agricultural land and the entries mentioned in his name have been correctly recorded. It is wrong that due to the mistake of Patwari Halqa, the entries continued to be made in the name of his father and after his death in his name were wrong. It is wrong that he alone has sold the land to defendants No. 2 to 5 but the land was sold by him as well as other co-sharers to them so, the question of application of Section 52 of the Transfer of Property Act could not be said to be arisen. With these allegations, he has prayed for dismissal of the suit with special costs under Section 35A C.P.C. The defendants No. 2 to 5 in their separate written statement have taken the similar preliminary objections as have been taken by defendant No. 1 in his written statement. However, besides the same, it has been pleaded by them that R.S.A.No. 2554 of 2009(O&M) {4} the suit was bad for non-joinder or necessary parties as all the vendors have not been impleaded and that the plaintiffs have not come to the court with clean hands because they have suppressed the true and material facts from the court. It is wrong that the plaintiffs were owners in possession of the suit land and that the defendant No. 1 and other co-sharers had no right or title to sell the land to them. They have purchased the suit land only after verifying the title of the vendors. As such, they are bona fide purchasers form defendant No. 1, his mother Chameli and sister Saroj Bala for valuable consideration. Other allegations were also denied in toto by them as well. With these pleadings they also prayed for dismissal of the suit with costs.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiff is in possession of the land id dispute? OPP (2)Whether the sale deed dated 27.2.1997 is invalid on the grounds mentioned in the plaint? OPP (3)Whether the plaintiff is entitled to flood relief funds as stated in the plaint?OPP (4)Whether the suit of the plaintiff is not maintainable?OPD (5)Whether the plaintiff has no cause of action? OPD (6)Whether the suit is time barred? OPD (7)Whether the plaintiff has no locus standi to file the suit? OPD R.S.A.No. 2554 of 2009(O&M) {5} (8)Whether the civil court has no jurisdiction to decide this suit? OPD (9)Whether the plaintiffs have not come to the court with clean hands, if so its effect?OPD (10)Whether the suit is bad for non-joinder of necessary parties as alleged? OPD (11)Whether the defendants are entitled to special costs? OPD (12)Relief. After hearing learned counsel for the appellant, I am of the opinion that there is no merit in the present appeal and the same deserves to be dismissed. Plaintiffs had filed a suit for declaration that they were owners in possession of the suit land. Jaimal-father of defendant No. 1 was owner of the suit land and he sold his share measuring 53 Kanals 16 marlas to Shri Ram, Rati Ram and Ram Niwas vide sale deed dated 25.7.1957. Plaintiffs filed a suit for pre- emption and the said suit was decreed in favour of the plaintiffs vide judgment and decree dated 22.1.1959. Thereafter mutation was sanctioned in favour of the plaintiffs on 15.6.1959 Ex. PY. Hence, Jaimal predecessor in interest of defendant No. 1 did not have ownership rights with regard to the property in question. However, entries in the revenue record continued in the name of Jaimal and thereafter in the name of his legal heirs. Since Jaimal was no longer owner of the property in dispute, then neither he or his legal heirs could sell the property in question. In these circumstances, courts below had rightly held that defendant No. 1, his mother and his sister could not execute sale deed in favour of defendants No. 2 to 4 vide sale R.S.A.No. 2554 of 2009(O&M) {6} deed dated 27.2.1997. The purchaser could not take a plea of bona fide purchaser as the seller had no right to sell the property in question as he was not owner of the same. Impugned judgment of the court below calls for no interference. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 15, 2009 PARAMJIT