R.S.A.No. 3334 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3334 of 2009 (O&M) Date of decision: 26.11.2009 Surjit Kaur ......Appellant Versus Darshan Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.G.S.Sandhu, Advocate, for the appellant. **** SABINA, J. Plaintiffs- respondents No. 1 and 2 filed a suit for declaration, which was dismissed by the Additional Civil Judge (Sr.Divn.), Phillaur vide judgment and decree dated 6.4.2005. Against the said judgment and decree two appeals were filed; one was filed by the plaintiffs and the other was filed by Amarjit Singh- defendant No.2. Both the appeals were accepted by the Additional District Judge,(Adhoc), Fast Track Court, Jalandhar vide judgment and decree dated 5.2.2009. Hence, the present appeal by legal representative of defendant No.1. R.S.A.No. 3334 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- “2. The brief facts of the case filed in the lower Court that plaintiffs Darshan Singh and Mohinder Singh filed a suit for declaration to the effect that they are owners in possession of the land measuring 33 kanals 1 marla on the basis of gift deed dated 14.10.1969. They have also sought the declaration that the sale deed dated 2.7.1980 and 9.8.1983 and the mutations consequent to that are illegal, null and void with consequential relief of permanent injunction restraining the defendant No.2 from alienating the property. 3. The facts so contained in the body of the plaint are that defendant No.1 was owner in possession of the land measuring 33 kanals 1 marla out of the land measuring 90 kanals 2 marlas detailed in the head note of the plaint being 1/3 share. He gifted the same to the plaintiffs vide registered gift deed dated 14.10.1969. By this plaintiffs became owners in possession jointly in the total amount measuring 99 kanals 2 marlas up to the share of 33 kanals 1 marla. They inherited ¼ share out of the total land measuring 99 kanals 2 marlas from their father. Hence, the plaintiffs are owners in possession of the land measuring 33 kanals 1 marla on R.S.A.No. 3334 of 2009 (O&M) 3 the basis of gift deed dated 14.10.1969 and ¼ share having inherited from their father, namely Battan Singh. The mutation was sanctioned on the basis of gift deed vide order of A.C.I Grade dated 17.2.1971. After gifting away the land, the defendant No.1 left with no right in the property, but later on due to male fide intention he sold land measuring 8 kanals and 3 kanals by executing two sale deeds to defendant No.2. The mutation was also sanctioned, which was illegal. The property was initially owned by Nathu, who has four sons, namely, Jagar Singh, Gurdit Singh, Battan Singh, Banta Singh and one daughter Channo. Plaintiff are sons of Battan Singh. After the death of Jagar Singh, his property came to Gurdit Singh, Battan Singh through his sons. Banta Singh and thus plaintiffs inherited the share of his father. 4. On summoning defendant No.1 filed written statement. He challenged the maintainability of the suit along with locus standi of the plaintiff to file the suit in preliminary objections. He challenged that sale deed dated 2.7.1980 and 9.8.1983 executed by him has rightly been executed. The gift deed alleged by the plaintiff is forged and fabricated. The suit is bad for misjoinder and non joinder of necessary parties. The R.S.A.No. 3334 of 2009 (O&M) 4 land is still joint and no legal partition till today has taken place. Moreover, simple suit for declaration without seeking the relief of possession is not maintainable. On merits he denied the suit and put up his claim that he is owner in possession of the suit property since time immemorial. The sale deeds have rightly been executed by him. He challenged the gift deed as forged and fabricated document. 5. Written statement was also filed by defendant No.3 in which he also challenged the locus standi of the plaintiffs to file the suit and further stated that the suit is barred by their own act and conduct and suit being barred by limitation. He challenged the pedigree table. He also set up a registered sale deed dated 19.8.1983. He averred that defendants No.2 and 3 are owners in possession of the land since the date of purchase. He also challenged the gift deed being result of fraud and misrepresentation.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiffs are owners in possession of the land measuring 33 kanals 1 marla? OPP 2. Whether the plaintiffs are owners in R.S.A.No. 3334 of 2009 (O&M) 5 possession on the basis of gift deed dated 14.10.1969? OPP 3. Whether the sale deeds dated 2.7.1980, 9.8.1983 and mutation No.3246 and 3228 are illegal, null and void? OPP 4. Whether plaintiffs are entitled for permanent injunction as prayed for? OPP 5. Whether suit of plaintiffs is time barred? OPD 6. Whether the plaintiffs are barred by their act and conduct? OPD 7. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiffs had filed a suit for declaration that they were owners in possession of the suit land on the basis of gift deed dated 14.10.1969 along with ¼ share of the suit land and the sale deeds dated 2.7.1980 and 9.8.1983 be declared illegal, null and void. The gift deed in question, when it was tendered in evidence, was a document, which was more than 30 years old. Consequently, it had a presumption that it had been duly executed. Banta Singh had earlier filed a suit for permanent injunction against Darshan Singh and Mohinder Singh. A compromise was effected in the said suit. Executant Banta Singh admitted the execution of the gift deed Ex.P- 1. In these circumstances, learned Additional District Judge rightly R.S.A.No. 3334 of 2009 (O&M) 6 held that the execution of the gift deed duly stood established on record. Hence, the plaintiffs were owners in possession of the land measuring 33 kanals 1 marla on the basis of the gift deed. The impugned sale deeds had been duly proved on record by examining the scribe and DW-5 Joga Singh. DW-2 Paramjit Singh, Clerk from D.C. Office, proved the due registration of the sale deeds. Banta Singh was having 49 kanals of land. Out of the said land, he executed a gift deed in favour of the plaintiffs qua 33 kanals 1 marla of land. He executed two sale deeds. Ex.D-1 is the sale deed executed by Banta Singh qua 3 kanals in favour of Amarjit Singh. The said sale deed in original is dated 9.8.1983. Ex.DX is the sale deed executed by Banta Singh qua 8 kanals of land in favour of Amarjit Singh. The said sale deed is dated 2.7.1980. Since Amarjit Singh had been successful in proving the execution of the sale deeds in his favour, learned Additional District Judge rightly held that the cross appeal filed by Amarjit Singh that he was joint owner in possession of the land purchased by him to the extent of 11 kanals was liable to be decreed. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 26, 2009 anita