RSA No.4273 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No.4273 of 2008 (O&M) Date of decision: 06.12.2011 Gurcharan Singh ...Appellant Versus Balwant Singh and Others ....Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present: Mr.Nakul Sharma, Advocate for the appellant. Mr.L.S.Sidhu, Advocate for respodnent No.1. Respondents No.2 to 4 ex parte. * * * RITU BAHRI,J. Challenge is to the judgment and decree dated 29.05.2008 passed by Additional District Judge, Ferozepur whereby, the appeal against the judgment and decree dated 20.04.2007 passed by the Civil Judge (Junior Division), Ferozepur has been dismissed. The plaintiff/appellant had filed a suit against the defendants for declaration to the effect that the sale deed dated 15.09.2003 for land measuring 6 kanals out of land measuring 8 Kanals comprised of Rect. No.17, Killa No.21 (8-0), situated at Village Pojo Ke Uttar Tehsil and District Ferosepur executed by defendants No.1 and 2 in favour of defendant No.3 is illegal, null and void. On 29.01.1988, husband of defendant No.2 Mangat Singh, being owner of land measuring 15 kanals 16 marlas, comprised in Rect. No.17, Killa No.21 (8-0) 22 (7- 16) situated at Village Pojo Ke Uttar, had entered into an agreement to sell with the plaintiff (appellant) and his brother Chhinda Singh at the rate of Rs.37,000/- per killa. Mangat Singh failed to perform his part of contract under the agreement dated 29.01.1988. A suit for specific RSA No.4273 of 2008 (O&M) 2 performance was filed by the plaintiff which was decreed by the court of Sh.H.R.Bhukal, the then Sub Judge, Ferozepur on 01.02.1990. During the pendency of execution of the decree, Mangat Singh died. Defendant No.2, widow of Mangat Singh, despite having knowledge of the decree dated 01.02.1990, executed a will dated 15.09.2003 in favour of defendant No.3 to defeat the right of the plaintiff. Upon notice, defendants contested the suit on the grounds of maintainability; jurisdiction and not properly valued for the purpose of court fee. On merits, it was admitted that Mangat Singh was the husband of defendant No.2 and after his death, the land was inherited by defendants No.1 and 2. The sale deed dated 15.09.2003 was executed by defendants No.1 and 2 in favour of defendant No.3 being owner. Defendant No.3 has purchased the same for valuable consideration. There was no agreement or compromise in favour of the plaintiff with Mangat Singh (deceased). After execution of sale deed dated 15.09.2003, the mutation has been sanctioned in favour of defendant No.3. On 11.12.2004,the trial court framed the following issues:- 1. Whether the sale deed dated 15.09.2003 executed by defendants No.1 and 2 in favour of defendant No.3 is illegal null and void in operative rights of the plaintiff? OPP. 2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPD. 3. Whether the present suit is not maintainable? OPD. 4. Relief. The trial court, after going through the evidence, came to the conclusion that the plaintiff has already been declared owner of the suit land vide judgment and decree passed by the court of Sh.H.R.Bhukal, Sub Judge dated 01.02.1990 and when defendants RSA No.4273 of 2008 (O&M) 3 No.1 and 2 was not the owner of the suit land, they could not pass good title to defendant No.3. The decree dated 01.02.1990 was not challenged by defendants No.1 and 2 and it has attained finality. The plaintiff become the owner of the suit land by virtue of this decree. Even though, a mutation was not sanctioned in his favour. The sale deed dated 15.09.2003 executed by defendants No.1 and 2 is illegal, null and void. The plea of bona fide purchaser of defendant No.3 was rejected by the trial court as no evidence to corroborate the same was led by him to prove that he was the bona fide purchaser. Defendant No.3 was at liberty to seek appropriate remedy against defendant No.1 and 2. The sale deed dated 15.09.2003 executed by defendant No.1 and 2 in favour of defendant No.3 is declared illegal null and void not binding qua the rights of plaintiff. The defendants filed an appeal before the Additional District Judge, Ferozepur. The findings recorded by the trial court have been affirmed that defendant No.2 have no right or title in the suit land in view of the judgment and decree dated 01.2.1990. Mr.Nakul Sharma, counsel for the appellant has argued that the application filed under Order 39 Rule 1 and 2 CPC was rejected on 11.12.2004 by the trial court on the ground that the plaintiff was not found to be in possession of the suit land after the sale deed dated 15.09.2003 and defendant No.3 was in possession of 6 kanals of land delivered by the legal heirs of Mangat Singh. Possession of defendant No.3 was recorded in khasra for the year 2003-04. He further submits that appeal against this order before the Additional District Judge was also dismissed on 24.10.2006. The criminal complaint initiated by Balwant Singh-plaintiff against defendants No.1 and 2 i.e legal heirs of Mangat Singh under Sections 420, 467, 468, 471, 120-B IPC was dismissed by the court of Judicial Magistrate Ist Class, Ferozepur on RSA No.4273 of 2008 (O&M) 4 03.04.2004. The criminal revision against this order was also dismissed on 26.04.2005. A perusal of this decree dated 01.02.1990 shows that initial agreement to sell was measuring 15 kanals 16 marlas at the rate of Rs.37000/- per killa however, as per the compromise, the plaintiff had agreed to purchase land measuring 8 kanals comprising Rect. No.17, Killa No.21 (8-0), situated at Village Pojo Ke Uttar Tehsil and District Ferozepur and the suit of the plaintiff for remaining 17 kanals was dismissed. While deciding the interim application under Order 39, Rule 1 and 2 CPC filed by the plaintiff,no injunction as was granted as he was not found in possession of the suit land. These orders cannot wipe out the findings recorded by both the courts below that the decree dated 01.02.1990 was never challenged by legal heirs of Mangat Singh. It had attained finality and subsequent sale qua the land measuring 8 kanals compromised in Rect. No.17, Killa No.21 (8- 0), situated at Village Pojo Ke Uttar Tehsil and District Ferosepur in favour of defendant No.3 on 15.09.2003 was null and void. No substantial question of law arises for consideration for admission of this appeal. Accordingly, the regular second appeal is dismissed. (RITU BAHRI) December 06, 2011. Judge Seema-II