RSA No.946 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.946 of 2010 (O&M) Date of decision: 6.4.2010 Bahadur Singh ......Appellant(s) Versus Dalip Kaur and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. G.S. Dhillon, Advocate for the appellant. Rakesh Kumar Garg, J. CM No.2703-C of 2010 Application is allowed subject to all just exceptions. RSA No.946 of 2010 The appellant, who was defendant No.1, alleging himself to be a bona fide purchaser of the suit land without notice and consideration, has challenged the judgment and decree of the Lower Appellate Court on the findings of issue Nos.1, 3 and 4 by way of this appeal. Brief facts of the case relevant for the disposal of this appeal are that one Amar Kaur widow of Subedar Sarwan Singh, resident of village Dhangtana, Tehsil Kharar District Ropar sold ¼ th share measuring 3 kanals 13 marlas out of the suit land comprising Khasra No.7//27(14-12) to the plaintiff-respondent vide sale deed dated 27.2.1992 for a consideration of Rs.1,58,500/- and also delivered possession thereof to her and since then the plaintiff-respondent was in possession of the suit land. Mutation No.411 was also sanctioned regarding the suit land along with other land purchased by respondent No.1 in her name on 18.3.1992. It was further pleaded that while preparing the jamabandi for the year 1993- RSA No.946 of 2010 (O&M) 2 94, the concerned Patwari omitted to incorporate the factum of sale and had shown said Amar Kaur as co-sharer in the suit land and share of the plaintiff-respondent was shown as 1/8th share out of the suit land whereas she had purchased 1/4th share out of the same. After the death of said Amar Kaur, the mutation of her inheritance was sanctioned in favour of defendants No.2 to 5 who sold the land measuring 1 kanal 17 marlas out of the suit land to the appellant vide sale deed dated 9.9.2004 with specific boundaries. Thereafter, the appellant started threatening to take possession of the said portion of the suit land on the basis of the aforesaid sale deed and also threatened to raise construction in the shape of boundary wall and dispossession of the plaintiff-respondent out of joint possession with other co-sharers. Hence, the present suit. Upon notice, the defendants appeared and contested the suit denying that Amar Kaur had sold her share to the plaintiff-respondent on 27.2.1992 and that the possession thereof was delivered to her. The share of Amar Kaur to the extent of 36th shares out of 72 share out of the suit land was also denied and it was pleaded that she was rightly shown as shareholder only to the extent of 1/8th share. It was admitted that defendants No.2 to 5 had sold 1 kanal 07 marlas land to the appellant vide sale deed dated 9.9.2004. It was further pleaded that the appellant was in actual physical possession of the said area. It was further pleaded that the appellant was a bona fide purchaser and was protected under Section 41 of the Transfer of Property Act. All other allegations were denied being incorrect and dismissal of the suit was prayed for. From the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiff is entitled for declaration as prayed for? OPP RSA No.946 of 2010 (O&M) 3 2. Whether defendant No.1 is bona fide purchaser and is protected under Section 41 of Transfer of Property Act? OPD 3. Whether the plaintiff is entitled for permanent injunction as prayed for? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff has not come to the Court with clean hands? OPD 6. Relief.” After perusing the evidence on record and hearing the respective submissions of both the learned counsel for the parties, the trial Court held that the plaintiff-respondent was owner to the extent of half share in the suit property on the basis of sale deed Ex.P-1. It was further held that sale deed dated 9.9.2004 (Ex.D-1) executed in favour of the appellant was also legal as Amar Kaur had sold out only 3 kanal 13 marals from the suit land out of 7 kanals 6 marlas to the plaintiff and accordingly, the sale deed in favour of the appellant out of her remaining land was legal and valid. Thus, the suit of the plaintiff-respondent was partly decreed to the extent that she was owner of 1/4th share in the suit land comprised in Khasra No.7//27(14-12) measuring 3 kanals 13 marlas. However, relief of declaring the plaintiff-respondent to be in joint possession and for permanent injunction was declined. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal before the Lower Appellate Court for her remaining grievance. It is pertinent to mention that the appellant had not challenged the judgment and decree of the Lower Appellate Court nor any cross- RSA No.946 of 2010 (O&M) 4 objections were preferred by him. While deciding the aforesaid appeal, the Lower Appellate Court affirmed the findings of the trial Court with regard to the land sold to the plaintiff-respondent vide sale deed dated 27.2.1992. However, the Lower Appellate Court reached to the conclusion that thereafter, Amar Kaur was left with no property in Khasra No.7//27(14-12) as she had also sold land in favour of Parminder Singh son of Gurbachan Singh and therefore, there was no question of inheritance of any property by defendants No.2 to 5 from Amar Kaur in the above khasra numbers and thus, defendants No.2 to 5 were not competent to convey the title in the suit property in favour of the appellant and therefore, sale deed Ex.D1 dated 9.9.2004 executed by defendants No.2 to 5 in favour of Bahadur Singh was void and inoperative qua the rights of the plaintiff-respondent. While accepting the appeal of the plaintiff-respondent, the Lower Appellate Court also held that the appellant cannot be held to be bona fide purchaser in good faith as defendants No.2 to 5 were not having any right, interest or title in the suit property at the time of executing the sale deed Ex.D1 in favour of the appellant. Resultantly, the Lower Appellate Court also reversed the findings of the trial Court holding the appellant in exclusive possession of the suit property and while reversing the aforesaid finding held that the plaintiff-respondent was in joint possession of the suit property being co-sharer therein. Aggrieved from the aforesaid finding of the Lower Appellate Court, defendant No.1 filed the instant appeal. Learned counsel for the appellant has vehemently argued that the Lower Appellate Court has totally misread the evidence on record of the case while holding that the appellant has got no right, title or interest in the suit property. In support of his argument, learned counsel for the RSA No.946 of 2010 (O&M) 5 appellant has referred to the copies of jamabandies placed on record as Ex. P-3 to P-5 to show the actual share from the revenue entries and that there was no ambiguity with regard to the share of Amar Kaur as well as defendants and even after the correction of the share of the plaintiff, the sale deed Ex.D1 dated 9.9.2004 would have no adverse effect upon the rights of the appellant as it comes within the ambit of the share of Amar Kaur. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arise in this appeal: “(i) Whether the misreading of evidence on the file by the Lower Appellate Court which resulted into totally miscarriage of justice is not a substantial question of law? (ii) Whether the documentary evidence which has been misread and mis-interpreted by the learned Lower Appellate Court is not a substantial question of law? (iii) Whether the totally ignoring and misreading of documentary evidence already on the file before the Lower Appellate Court is not substantial question of law? (iv) Whether the appellant is protected under Section 41 of the Transfer of Property Act as he is a bona fide purchaser for consideration without notice which has been proved on record by way of documentary as well as oral evidence is not a substantial question of law?” I have heard learned counsel for the appellant and perused the impugned judgment and decrees of the Courts below. Undisputedly, the trial Court partly decreed the suit of the plaintiff-respondent holding her entitlement to 1/4th share in the suit land RSA No.946 of 2010 (O&M) 6 measuring 3 kanals 13 marlas in the suit land comprised in khasra No.7//27(14-12). The appellant did not challenge the aforesaid finding of the trial Court and the aforesaid finding became final against him. The Lower Appellate Court further found that after sanction of mutation No.445 in favour of Parminder Singh son of Gurbachan Singh, Amar Kaur was left with no share in the suit land and therefore, defendants No.2 to 5 who claim inheritance in the property of Amar Kaur, in fact had no right, title or interest in the suit property which could be conveyed in favour of the appellant vide sale deed dated 9.9.2004 (Ex.D1). There is not an iota of evidence on the basis of which the aforesaid finding of fact could be challenged before this Court by the appellant. In the face of the aforesaid finding of fact, defendants No.2 to 5 (vendors) could not convey any legal title in favour of the appellant with regard to land alleged to be purchased by him vide aforesaid sale deed. No fault can be found with the findings of the Lower Appellate Court. Thus, I find no merit in this appeal. No substantial question of law arises in this appeal. Dismissed. April 6, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.946 of 2010 (O&M) 7