RSA No.3662 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3662 of 2008(O&M) Date of decision: 29.1.2009 Babu Lal ......Appellant Versus Om Parkash and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sanjay Mittal, Advocate for the appellant. * * * Rakesh Kumar Garg, J. CM No.10859-C of 2008 For the reasons recorded in the application, delay of 8 days in refiling the appeal is condoned. CM stands disposed of. RSA No.3662 of 2008(O&M) The plaintiff-respondent No.1 filed a suit seeking a decree for declaration that he is owner in possession of the suit land by virtue of sale deed No.1120 dated 24.6.1997 and judgment and decree passed in Civil Suit No.308/97 titled as Ram Singh and others v. Sanwal Singh @ Sanwalia decided on 7.4.1997 is not binding upon his rights with consequential relief of permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the suit land, on the averments that he purchased the suit land from Sanwalia- defendant No.1 for a consideration of Rs.1,30,000/-. Before purchasing the suit land, he made enquiry with regard to the title of defendant No.1. It was further averred that the plaintiff was a bona fide purchaser for valuable RSA No.3662 of 2008(O&M) 2 consideration of the suit land. When the plaintiff presented the sale deed dated 24.6.1997 before the revenue authorities for getting the mutation sanctioned in his favour, he came to know about the Civil Court decree dated 7.4.1997 passed in Civil Suit No.308/97 titled as “Ram Singh and others v. Sanwalia” and he further came to know that defendant No.1 had suffered civil court decree dated 7.4.1997 in favour of defendants No.2 to 4 regarding the suit land and he was not the owner of the suit land at the time of execution of the sale deed. The defendants were asked several times to admit his claim but to no effect. Hence, the suit. The suit was contested by defendant No.1 by filing written statement controverting the averments made in the plaint. It was pleaded that sale deed dated 24.6.1997 was a forged document and he did not execute the aforesaid sale deed in favour of the plaintiff. It was further stated that he had already transferred the suit land in favour of defendants No.2 to 4 by way of civil court decree dated 7.4.1997 and he was left with no right, title or interest in the disputed property at the time of execution of the alleged sale deed dated 24.6.1997. All other averments made in the plaint were also denied. Defendants no.2 to 4 filed separate written statement in line with the written statement filed by defendant No.1. It was also pleaded by them that the suit property had fallen to their share in family settlement and defendant No.1 had transferred the suit land in their favour by way of civil court decree dated 7.4.1997 in pursuance of the aforesaid family settlement. All other averments made in the plaint were denied and dismissal of the suit was prayed for. The trial Court after considering the evidence and submissions made by both the counsel for the parties, found that the suit land was sold to the plaintiff by defendant No.1 with the consent of defendants No.2 to 4 RSA No.3662 of 2008(O&M) 3 in whose favour he suffered decree dated 7.4.1997. The trial Court also concluded that defendants No.2 to 4 allowed defendant No.1 to execute the sale deed in favour of the plaintiff in spite of the fact that they had knowledge that defendant No.1 had already transferred the suit land in their favour and thus, the defendants were found to have connived with each other to cheat the plaintiff. Thus, the plaintiff was found to be a bona fide purchaser of the suit land for valuable consideration without notice of the rights of defendants No.2 to 4 on the basis of civil court decree dated 7.4.1997 and it was held that the aforesaid decree was not binding on the rights of the plaintiff. In the result, the suit of the plaintiff-respondent was decreed with costs declaring him to be a bona fide purchaser of the suit land vide sale deed dated 24.6.1997 and that he is owner in possession of the suit land and the decree dated 7.4.1997 is not binding upon him. The trial Court also restrained the defendant from interfering with the peaceful possession of the plaintiff over the suit land. Aggrieved by the aforesaid judgment and decree of the trial Court, Babu Lal-defendant No.4 alone filed an appeal before the Lower Appellate Court which was dismissed by the District Judge, Rewari vide impugned judgment and decree dated 9.2.2008. Still not satisfied, defendant No.4-appellant has filed the instant appeal challenging the judgment and decrees of the Courts below. I have heard learned counsel for the appellant and perused the record of the case. The relevant observations of the Lower Appellate Court are reproduced as under: “It is true that the principle in such cases is of “buyer beware”. On the decree dated 7.4.1997, the mutation was sanctioned on 15.6.1997. There was no suit RSA No.3662 of 2008(O&M) 4 pending on the date of purchase of the suit land by the plaintiff. For the fact that no suit was pending on the date of purchase of the suit land by the plaintiff, the doctrine of lis pendens has no application to the facts of this case. The question to be answered in this case is as to whether the plaintiff could have become aware of the decree dated 4.7.1997 if he had made enquiry like a reasonable person. If the answer to this question is found in affirmative, then his enquiry was not due enquiry required in such cases. In that event he cannot be held to be a bona fide purchaser. However, if the answer comes to the question in negative, then the plaintiff would be held to be bona fide purchaser of the suit land for consideration. The first question that arises here is as to whether on 21.6.1997 when copy of jamabandi was issued to the plaintiff, the entry regarding mutation sanctioned on 15.6.1997 would have been there in the jamabandi the copy of which was issued. If it can be said that the entry of the mutation sanctioned on 15.6.1997 should have, in all probabilities, been made in the jamabandi, a copy of which was issued to the plaintiff on or before 21.6.1997, the case of the defendants would become strong. However, no evidence has been led by the defendants to prove that the entry of the mutation had been made in the jamabandi on or upto 21.6.1997. The Patwari was also not examined by the defendants to prove that he had colluded with the plaintiff and had RSA No.3662 of 2008(O&M) 5 issued a copy of jamabandi by omitting the reference of mutation dated 15.6.1997 therefrom. The time between the date of sanction of the mutation and the date of obtaining a copy of jamabandi by the plaintiff is so short that no presumption could be raised against the case of the plaintiff about the entry of mutation to have been there in the jamabandi and that he in collusion with the Patwari had got the copy of the same issued by omitting the said entry. Not only Sanwalia has executed the sale deed dated 24.6.1997 in favour of the plaintiff, his son Ram Singh had attested the same and his son Babu Lal had been there in tehsil office while this sale deed was being executed and had independently executed a mortgage deed in respect of a share in the same land in favour of the plaintiff. They could have told the plaintiff about the decree in their favour and that their father was no more owner of the suit land. In place of telling him about the decree passed in favour of sons of Sanwalia in respect of the suit land and other land, they are working in the direction of execution of the sale deed after the passing of the decree dated 7.4.1997 and sanction of mutation on 15.6.1997. All these circumstances clearly show that the plaintiff has been rightly held by learned trial Court to be a bona fide purchaser of the suit land for consideration from an ostensible owner of the same.” From the perusal of the aforesaid observations of the Lower RSA No.3662 of 2008(O&M) 6 Appellate Court, it is crystal clear that the findings of the trial Court have been affirmed by the Lower Appellate Court on appreciation of evidence and it has been held that the plaintiff-respondent could not have come to know about the decree dated 7.4.1997 if he had made enquiry as an ordinary prudent man. It has also been found by the Courts below that defendant No.1 sold the suit land in favour of the plaintiff-respondent with the consent of defendants No.2 to 4 in whose favour he has suffered the decree dated 7.4.1997 and defendants No.2 to 4 were in the knowledge when defendant No.1 executed the sale deed in favour of the plaintiff in spite of the fact that they were having a decree dated 7.4.1997 in their favour. On the basis of these facts, the Courts below have recorded a finding of fact that the defendants connived with each other to cheat the plaintiff-respondent and thus, there is no perversity in the findings recorded by the Courts below. No substantial question of law arises in this appeal. Dismissed. January 29, 2009 (RAKESH KUMAR GARG) ps JUDGE