Regular Second Appeal No. 3902 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 3902 of 2008. (O&M) Date of Decision: 4.2.2009 *** Ismail .. Appellant VS. Mehmood Khan & ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Adarsh Jain, Advocate for the appellant. *** ARVIND KUMAR, J. Delay condoned. This is plaintiffs' regular second appeal. Let us first advert to the facts of the case. The present appellant is brother of one Ishak (since deceased), who was owner of land measuring 28 kanals 18 marlas. Defendant No.4 Diljahan (respondent No.6 herein) filed civil suit bearing No.69 of 1992 against Ishak in respect of the suit land, wherein Ismail, the present appellant and husband of Diljajan, appeared in the capacity of general power of attorney of Ishak and suffered a statement which led to the decretal of the said suit and consequently Diljahan stepped into the shoes of Ishak by dint of aforesaid decree and mutation No.6022 dated 11.5.1992 in respect of the suit land was entered in favour of Diljahan. Thereafter, Ishak filed civil suit bearing No.327 of 1992 against Diljahan and ors. and laid challenge to the judgment and decree passed in Civil Suit No. 69/1992 with the averments that he never appointed Ismail as his power of attorney and the said decree is result of fraud and collusion between Diljahan and her husband Ismail. It is apt to mention here that before that suit could be decided, Regular Second Appeal No. 3902 of 2008 2 on 10.3.1997 Diljahan got executed two sale-deeds, one in favour of predecessor in interest of respondents No. 1 to 3 namely Smt. Rehmani and second one in the name of respondents No.4 and 5, which were registered on 19.3.1997 and sold the suit land to them. On 9.6.1997 pursuant to a compromise entered between the parties i.e. Ishak-Diljahan-Ismail, the civil suit No.327/1992 was decreed and the judgment and decree passed in civil suit No.69/1992 in favour of Diljahan was set aside. This led Ishak to file the instant suit claiming the relief of injunction against defendants No.1 to 3 i.e. the subsequent purchasers by restraining them from taking forcible possession of the suit property by dispossessing him and also for setting aside the sale-deeds in their favour on the plea that the same are not binding upon the plaintiff and are hit by the principle of lis pendens being executed during pendency of civil suit No. 327/1992. The stand of defendants No.1 to 3 was that they are bonafide purchasers for valuable consideration and without notice of pendency of suit wherein they were not party and collusion of plaintiff and defendant No.4 Diljahan in the entire transaction. Defendant No.4 Diljahan admitted the claim of the plaintiff in toto and sought for decreeing the suit. Both the Courts below non-suited the plaintiff on the ground that there was collusion between him and Diljahan and defendants No.1 to 3 are bonafide purchasers for valuable consideration whose rights have to be protected. Hence this regular second appeal has been filed by the plaintiff. I have heard learned counsel for the appellant and have gone through the paper-book carefully. The factors which prompted the Courts below to disbelieve the plaintiff are that, firstly the case of the plaintiff was that he never executed any power of attorney in respect of the suit land in favour of Ismail, who lateron suffered a decree in favour of his wife Diljahan, but this plea was found totally wrong in view of the admission of the plaintiff himself, who categorically admitted that vide cancellation deed dated 7.2.1991 (Ex.PX) he cancelled the power of attorney 16.10.1990 in favour of Ismail, since he lost his faith in him. Secondly, Ismail by way of civil court decree transferred the suit land in favour of his wife Diljahan, who further sold the Regular Second Appeal No. 3902 of 2008 3 same to defendants No.1 to 3 vide different sale-deeds dated 10.3.1997 through her power of attorney Mehmood. Although she claims that she never appointed Mehmood as her power of attorney and the sale-deeds in favour of defendants No.1 to 3 are sham transactions, but the said version stand belied from the fact that Diljahan filed a suit against Mehmood wherein she claimed Mehmood to be her power of attorney who although executed the sale-deeds in favour of defendants No.1 to 3 for a consideration of Rs.3,75,000/- but did not pass on the sale amount to her. In that suit the plaint was rejected for want of non-furnishing of proper court fee. Thus, her plea was rejected by observing that the same has been taken by her just to wriggle out from the sale-deeds executed in favour of defendants No.1 to 3. Thirdly, it is not disputed that at the time of compromise between the parties of civil suit No.327/1992, on 9.6.1997 Diljahan did not disclose the factum of having sold the suit land to defendants No.1 to 3 vide sale-deeds dated 10.3.1997. Fourthly, the defendants-subsequent purchaser led the evidence to show that the counsel who appeared on behalf of Ishak in some litigation against Diljahan had also represented Diljahan in other litigation against Mehmood. These facts impressed the Courts below to conclude that there was apparent collusion between Ishak-Diljahan and Ismail in the whole episode, which had been done to defeat the rights of defendants No.1 to 3 who are the bonafide purchasers for consideration, without notice of the pending litigation, in which admittedly they were not party and thus, principle of lis pendens does not come in their way as a hurdle from enjoying their ownership rights over the suit property. Thus, in the facts and circumstances of the case, it cannot be said that the approach of the Courts below in dismissing the suit of the plaintiff is either illegal or perverse. Nothing has been shown to take a contrary view than that of concurrent findings recorded by the Courts below. No substantial question of law, which is sine qua non for admission of appeal, is made out. The appeal is wholly without merit and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE February 4,2009 Jiten