RSA No.302 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.302 of 2010 Date of decision : 28-09-2010 Bachan Singh and others ....Appellants VERSUS Balbir Singh ....Respondent CORAM:- HON'BLE MR. JUSTICE L.N. MITTAL Present: Mr. Anil Chawla, Advocate, for the appellants. L.N. MITTAL, J. (Oral) CM No.855-C of 2010 Allowed as prayed for. CM No.856-C of 2010 For reasons mentioned in the application which is accompanied by affidavit of the counsel, delay of 11 days in refiling the appeal is condoned. RSA No.302 of 2010 Plaintiffs Bachan Singh and his two brothers having failed in both the Courts below are in second appeal. The plaintiffs alleged that defendant-respondent Balbir Singh mortgaged 13 Kanals 8 Marlas land with possession with the plaintiffs vide mortgage deed dated 3.11.1988 registered on 7.11.1988 for Rs.24,000/- for a period of six years. The plaintiffs RSA No.302 of 2010 -2- purchased 2 Kanals land out of it, from Amar Kaur vide sale deed dted 27.02.1992. The plaintiffs purchased the remaining suit land measuring 11 Kanals 8 Marlas from Amar Kaur vide sale deed dated 21.04.1992. The plaintiffs have thus become owners in possession of the suit property which has not yet been partitioned. Amar Kaur had saleable interest in every part of the joint land. The plaintiffs accordingly sought declaration that they are owners in possession of the suit property measuring 11 Kanals 8 Marlas. They have also sought permanent injunction restraining the defendant from dispossessing the plaintiffs from the suit property forcibly or otherwise. The defendant while admitting the factum of mortgage, controverted the other plaint allegations and raised various objections. Learned Civil Judge (Junior Division), Tarn Taran, vide judgment and decree dated 23.10.2008 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Tarn Taran vide judgment and decree dated 21.04.2009. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Learned counsel for the appellants contended that total joint land is 108 Kanals in which share of Amar Kaur was to the extent of 15 Kanals 5 Marlas and, therefore, sale of 13 Kanals 8 Marlas land including 11 Kanals 8 Marlas suit land by Amar Kaur RSA No.302 of 2010 -3- to plaintiffs was within the share of Amar Kaur vendor and consequently, plaintiffs have become owners in possession of the suit property. It was also contended that share of Balbir Singh defendant in the aforesaid 108 Kanals joint land was also 15 Kanals 5 Marlas but he had sold land in excess of his said share and, therefore, the defendant – respondent is left with no right, title or interest in the suit land. I have carefully considered the aforesaid contentions but the same cannot be accepted. The plaintiffs by purchasing share from Amar Kaur in joint land may have become co-sharers in the total joint land. However, the plaintiffs have not become owners in possession of the suit land measuring 11 Kanals 8 Marlas. Admittedly, possession of the suit land was delivered to the plaintiffs by the defendant under the mortgage deed. Consequently, possession of the plaintiffs over the suit land is as mortgagees. Sale by Amar Kaur was qua her share and consequently plaintiffs by purchasing from Amar Kaur could become co-sharers in 108 Kanals joint land but it is not explained as to how plaintiffs have become owners in possession of 11 Kanals 8 Marlas land in suit. As noticed hereinabove, possession of the plaintiffs over the suit land is as mortgagees under the defendant. The contention that defendant has sold land in excess of his share in the joint land has to be rejected outrightly being completely beyond pleadings. Both the Courts below have concurrently recorded finding against the plaintiffs-appellants. The said findings are based on RSA No.302 of 2010 -4- appreciation of evidence and are not shown to be perverse or illegal so as to warrant interference in the second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is dismissed in limine being without any merit. (L.N. MITTAL) JUDGE 28-09-2010 manju